Property Law Outline Profess or Klein
I. AN INTRODUCTION TO SOME FUNDAMENTALS
A. What is Property
1. In legal discourse, property is what the law defines as property. If a claim
to a resource is not recognized by law, it is not property in a legal sense.
Once recognized by law, a claim becomes a legal right.
a. A person may be said to hold a property interest if he has any right
which the law will protect against infringement by others. There is
tangible and intangible property. Perhaps the most important
distinction is the distinction between title (roughly what the lay
person thinks of as “ownership”) and possession (dominion and
control). A unique feature of Anglo- American property law is that
title to a parcel of real estate can be spread among numerous
owners and in several different ways (see, possessory estates, infra).
b. Modern analysis insists that an estate is a bundle of rights, what
rights are in the bundle is a matter of public policy.
1.) Example: restraints on alienation.
c. Ownership consists of a number of different rights called a
“bundle” : the right to possess, the right to use, the right to exclude,
the right to transfer (gift and sale). These rights are not absolute
(zoning laws, see, for e.g., Moore v. Regents of UC, State v. Shack,
holding even the right to exclude others is subject to limits
imposed upon by society.
1.) Rationale: property rights serve basic human values. Property
rights are not absolute.
Basic to the social welfare
Resource utilization
2. What should be recognized as a property right depends on considerations of
a. Fairness and
b. Economic Efficiency
3. Defined : the legal relationships among people in regard to a thing. For
e.g., Joe owns this watch, it is his property. The words “own” and
“property” refer to the legal relationship Joe has with other persons in
regard to the watch.
4. Legal Process
a. How do judges make rules?
1.) Analogy
2.) Custom
3.) History
4.) Precedent
5. Jeremy Bentham : property is la legally protected expectation … of being
able to draw some advantage from a thing in question, according to the
nature of the case.
6. Felix Cohen: That is property to which the following label can be attached:
To the world: keep off unless you have my permission, which I may grant
or withhold. Signed: private citizen. Endorsed: the state.
7. Five theories advanced to justify the institution of private property
a. The Occupation Theory – the simple fact of occupation or
possession justifies legal protection of the possessor’s claim to the
thing
b. The Labor Theory – a person has a moral right to ownership and
control of things he produces or acquires through his or her labor
c. The Contract Theory – private property is the result of contract
between individuals and the community
d. The Natural Rights theory – the natural law dictates the recognition
of private property
1
,Property Law Outline Profess or Klein
e. The Social Utility Theory – the law should promote the maximum
fulfillment of human needs and aspirations, and that legal
protection of private property does promote such fulfillment.
f. Economic Theory – the legal protection of property rights has an
important economic function: to create incentives to use resources
efficiently
g. Equality Rights: the institution of private property really protected
man’s natural equality of rights. Equality of rights means that every
man has the right to grab. The institution pf property was an
agreement among men legalizing what each had already grabbed.
II. CHAPTER 1. FIRST POSSESSION: ACQUISITION OF PROPERTY BY DISCOVERY,
CAPTURE, AND CREATION: RIGHTS OF POSSESSORS: TITLE FROM POSSESSION –
(1) WILD ANIMALS (2) FINDING LOST ARTICLES (3) ADVERSE POSSESSION.
Normally one gains title to something by acquiring it from another
with the others consent. There are a few ways to gain title from
posses sion, (1) wild animals, (2) finding lost articles, and (3) adverse
posses sion are the best examples of this. Keep in mind that the concept of
possession is important because once a person has gained possession she
has rights superior to the rest of the world. The problems below revolve
around the question of What constitutes possession? For the finder to
acquire these special rights he must take the property into his possession
(intent to assume dominion and physical control over the goods.)
2
,Property Law Outline Profess or Klein
A. Acquisition by Discovery – FIRST IN TIME1
1. Land - - The US government traces its title back to the original discovery
and conquest of America by white European explorers. Obviously, Native
Americans were here before the white man arrived. However, American
courts have held that although Indians had “possession” of the land on
which they lived, they did not have “title” to it, and could not convey title.
Therefore, a title derived from the federal government, or from one of the
states or colonies, has priority over an earlier purported “grant” from one
Indian Tribe. Johnson v. M’Intosh, 21 U.S. (8 Wheat) 543 (1832).
a. Note: Discovery gave an exclusive right to extinguish the Indian title
of occupancy, either by purchase or by conquest. The first
“discoverer” had a preem ptive right to deal with the Indians as
against subsequent discoverers.
b. Note: the European settlers had the power to impose a point of view
on the Indians, to privilege an ideology and the use the privilege to
justify the power. Property confers and rests upon power.
c. Note: the discovery of the Indian occupied lands vested absolute
title in the discoverers and rendered the Indian inhabitants
incapable of transferring absolute title in others.
B. Acquisition by Capture
1. Rule of Capture : Wild Animals are not owned by anyone, but once a person
has gained possession of such an animal, he has rights in that animal
superior to those of the rest of the world. Capture is sufficient. The mere
fact that one has spotted or chased an animal is not sufficient to
constitute possession. Property in wild animals is only acquired by
occupancy, pursuit alone does not constitute occupancy or vest any right
on the pursuer.
2. Example : A is on a horse pursuing a fox, and B spots the fox and shoots it,
killing it. Held , “mere pursuit” gave A no legal right to the fox, and that B
thus had the right to interfere and is entitled to it. Pierson v. Post
a. The concern here is when did possession occur? Physical control
and intent to assume dominion.
b. Rationale: Society’s objective is to capture foxes (to destroy them)
or ducks (to eat them). To foster competition, resulting in more wild
animals being captured, society does not reward the pursuer, only
the captor. It is assumed that this brings more persons into pursuit,
resulting in more capture. Also, rewarding capture is an objective
act, is an easier rule to administer than protecting pursuit, which is
hard to define and can take any forms. Thus, the rule of capture
promotes certainty and efficiency of administration in a situation
where the stakes are not high and worth judicial time. Competition
and ease of administration but today the rule of capture leads to
overutitlization and overcapture.
c. Note: Peirson v. Post was a wasteland
3. Business competition: Courts are more likely to be sympathetic to the
interfering defendant if he acts out of business competition with the
plaintiff as opposed to spite or malice. The Court may also look to custom
or usage prevailing in the activity involved.
a. Example: Plaintiff had set some decoys on his own pond to lure
ducks in order to hunt them and defendant fired guns to drive
1 A fundament al property rule is the first person to take possession of a thing owns it. A
corollary is that a prior possessor prevails over a subsequent one. The two contexts in
which this rule becomes important in property is “wild animals” and “finders.” The FIT
rules implement important social policies relating to rewarding labor, protecting
investment in resources, and encouraging people to bargain rather than fight.
3
, Property Law Outline Profess or Klein
them away. Held , for Plaintiff. Defendant’s act was a malicious
interference with Plaintiff’s livelihood. Keeble v. Hickeringill, 103
Eng. Rep. 1127 (K.B. 1707).
1.) Note: that if D was luring the ducks away for his own business
then this would have been okay. But, a person who does not
want to capture the animals cannot interfere because society
wants the animal caught.
b. Custom may indicate a different result. When all that is
practicable has been done in order to secure a wild animal it
becomes the property of the securer who has exercised sufficient
personal control over the wild animal. No one would engage in this
activity if he could not be guaranteed the fruits of his labor. Two
considerations have modified the rule
1.) All that was practicable was done
2.) Trade usage was industry wide
(a) Economic interests were certainly important
c. Example: In the whaling industry it is customary that the ship that
lanced and killed the whale was the owner, even though it sank and
floated to the surface and found by someone else. Therefore, a ship
that kills the whale recovered against defendant who bought it at an
auction from the person who found it on the beach. Ghen v. Rich, 8
F. 159 (1881).
1.) Rules are designed to achieve ends the instrume nt al nature of
law
2.) A person who does not want to capture cannot interfere
4. The Rule of Capture and Other Fugitive Resources
a. Definition: Resources that move from one place to another under
their own power like oil and gas and water. Possession of the land
is not necessarily possession of the fugitive resource.
5. Harold Demset z, Towar d a Theory of Property Rights
a. Note: “EXTERNALITIES” failure to consider the effects (costs and
benefits) on others of your decisions regarding resource allocation.
C. Acquisition by Creation – “Ideas”
1. Introduction: the assertion is that if you create something then that
something is yours to exploit. The underlying idea derives from Locke, who
reasoned that you own the fruits of your labor in consequence of having a
property in your person.
2. General Rule - - No protection against imitation - - In the absence of
some recognized right at C/L, or under the statutes, a man’s property is
limited to the chattels which embody his invention. Others ay imitate these
at their pleasure. There is no property rights in ideas, but there may be a
statutory one conferred by Congress in the area of trademark or copyright
– none here. Cheney Bros. v. Doris Silk Corp. Compare International News
Service v. Associated Press, holding that AP had a “quasi - property”
interest in the news it had gathered and could stop competitors from using
it until its commercial value as new had passed away.
3. Douglas G. Baird, Common Law Intellectual Property and the Legacy of
International News Serice v. Associated Press
4. In Smith v. Chanel, Inc., a case that involved a perfume company’s right to
claim in advertisement s that its product was “the equivalent of the more
expensive Chanel No. 5,” the Court upheld the perfume company’s right to
copy the unpatented Chanel No. 5. In rejecting the district court’s
reasoning that the values in the Chanel tradem ark required great
expenditures of money, effort and ability, the court found Chanel was not
entitled to a monopoly even though it created the product. The copyist
4
I. AN INTRODUCTION TO SOME FUNDAMENTALS
A. What is Property
1. In legal discourse, property is what the law defines as property. If a claim
to a resource is not recognized by law, it is not property in a legal sense.
Once recognized by law, a claim becomes a legal right.
a. A person may be said to hold a property interest if he has any right
which the law will protect against infringement by others. There is
tangible and intangible property. Perhaps the most important
distinction is the distinction between title (roughly what the lay
person thinks of as “ownership”) and possession (dominion and
control). A unique feature of Anglo- American property law is that
title to a parcel of real estate can be spread among numerous
owners and in several different ways (see, possessory estates, infra).
b. Modern analysis insists that an estate is a bundle of rights, what
rights are in the bundle is a matter of public policy.
1.) Example: restraints on alienation.
c. Ownership consists of a number of different rights called a
“bundle” : the right to possess, the right to use, the right to exclude,
the right to transfer (gift and sale). These rights are not absolute
(zoning laws, see, for e.g., Moore v. Regents of UC, State v. Shack,
holding even the right to exclude others is subject to limits
imposed upon by society.
1.) Rationale: property rights serve basic human values. Property
rights are not absolute.
Basic to the social welfare
Resource utilization
2. What should be recognized as a property right depends on considerations of
a. Fairness and
b. Economic Efficiency
3. Defined : the legal relationships among people in regard to a thing. For
e.g., Joe owns this watch, it is his property. The words “own” and
“property” refer to the legal relationship Joe has with other persons in
regard to the watch.
4. Legal Process
a. How do judges make rules?
1.) Analogy
2.) Custom
3.) History
4.) Precedent
5. Jeremy Bentham : property is la legally protected expectation … of being
able to draw some advantage from a thing in question, according to the
nature of the case.
6. Felix Cohen: That is property to which the following label can be attached:
To the world: keep off unless you have my permission, which I may grant
or withhold. Signed: private citizen. Endorsed: the state.
7. Five theories advanced to justify the institution of private property
a. The Occupation Theory – the simple fact of occupation or
possession justifies legal protection of the possessor’s claim to the
thing
b. The Labor Theory – a person has a moral right to ownership and
control of things he produces or acquires through his or her labor
c. The Contract Theory – private property is the result of contract
between individuals and the community
d. The Natural Rights theory – the natural law dictates the recognition
of private property
1
,Property Law Outline Profess or Klein
e. The Social Utility Theory – the law should promote the maximum
fulfillment of human needs and aspirations, and that legal
protection of private property does promote such fulfillment.
f. Economic Theory – the legal protection of property rights has an
important economic function: to create incentives to use resources
efficiently
g. Equality Rights: the institution of private property really protected
man’s natural equality of rights. Equality of rights means that every
man has the right to grab. The institution pf property was an
agreement among men legalizing what each had already grabbed.
II. CHAPTER 1. FIRST POSSESSION: ACQUISITION OF PROPERTY BY DISCOVERY,
CAPTURE, AND CREATION: RIGHTS OF POSSESSORS: TITLE FROM POSSESSION –
(1) WILD ANIMALS (2) FINDING LOST ARTICLES (3) ADVERSE POSSESSION.
Normally one gains title to something by acquiring it from another
with the others consent. There are a few ways to gain title from
posses sion, (1) wild animals, (2) finding lost articles, and (3) adverse
posses sion are the best examples of this. Keep in mind that the concept of
possession is important because once a person has gained possession she
has rights superior to the rest of the world. The problems below revolve
around the question of What constitutes possession? For the finder to
acquire these special rights he must take the property into his possession
(intent to assume dominion and physical control over the goods.)
2
,Property Law Outline Profess or Klein
A. Acquisition by Discovery – FIRST IN TIME1
1. Land - - The US government traces its title back to the original discovery
and conquest of America by white European explorers. Obviously, Native
Americans were here before the white man arrived. However, American
courts have held that although Indians had “possession” of the land on
which they lived, they did not have “title” to it, and could not convey title.
Therefore, a title derived from the federal government, or from one of the
states or colonies, has priority over an earlier purported “grant” from one
Indian Tribe. Johnson v. M’Intosh, 21 U.S. (8 Wheat) 543 (1832).
a. Note: Discovery gave an exclusive right to extinguish the Indian title
of occupancy, either by purchase or by conquest. The first
“discoverer” had a preem ptive right to deal with the Indians as
against subsequent discoverers.
b. Note: the European settlers had the power to impose a point of view
on the Indians, to privilege an ideology and the use the privilege to
justify the power. Property confers and rests upon power.
c. Note: the discovery of the Indian occupied lands vested absolute
title in the discoverers and rendered the Indian inhabitants
incapable of transferring absolute title in others.
B. Acquisition by Capture
1. Rule of Capture : Wild Animals are not owned by anyone, but once a person
has gained possession of such an animal, he has rights in that animal
superior to those of the rest of the world. Capture is sufficient. The mere
fact that one has spotted or chased an animal is not sufficient to
constitute possession. Property in wild animals is only acquired by
occupancy, pursuit alone does not constitute occupancy or vest any right
on the pursuer.
2. Example : A is on a horse pursuing a fox, and B spots the fox and shoots it,
killing it. Held , “mere pursuit” gave A no legal right to the fox, and that B
thus had the right to interfere and is entitled to it. Pierson v. Post
a. The concern here is when did possession occur? Physical control
and intent to assume dominion.
b. Rationale: Society’s objective is to capture foxes (to destroy them)
or ducks (to eat them). To foster competition, resulting in more wild
animals being captured, society does not reward the pursuer, only
the captor. It is assumed that this brings more persons into pursuit,
resulting in more capture. Also, rewarding capture is an objective
act, is an easier rule to administer than protecting pursuit, which is
hard to define and can take any forms. Thus, the rule of capture
promotes certainty and efficiency of administration in a situation
where the stakes are not high and worth judicial time. Competition
and ease of administration but today the rule of capture leads to
overutitlization and overcapture.
c. Note: Peirson v. Post was a wasteland
3. Business competition: Courts are more likely to be sympathetic to the
interfering defendant if he acts out of business competition with the
plaintiff as opposed to spite or malice. The Court may also look to custom
or usage prevailing in the activity involved.
a. Example: Plaintiff had set some decoys on his own pond to lure
ducks in order to hunt them and defendant fired guns to drive
1 A fundament al property rule is the first person to take possession of a thing owns it. A
corollary is that a prior possessor prevails over a subsequent one. The two contexts in
which this rule becomes important in property is “wild animals” and “finders.” The FIT
rules implement important social policies relating to rewarding labor, protecting
investment in resources, and encouraging people to bargain rather than fight.
3
, Property Law Outline Profess or Klein
them away. Held , for Plaintiff. Defendant’s act was a malicious
interference with Plaintiff’s livelihood. Keeble v. Hickeringill, 103
Eng. Rep. 1127 (K.B. 1707).
1.) Note: that if D was luring the ducks away for his own business
then this would have been okay. But, a person who does not
want to capture the animals cannot interfere because society
wants the animal caught.
b. Custom may indicate a different result. When all that is
practicable has been done in order to secure a wild animal it
becomes the property of the securer who has exercised sufficient
personal control over the wild animal. No one would engage in this
activity if he could not be guaranteed the fruits of his labor. Two
considerations have modified the rule
1.) All that was practicable was done
2.) Trade usage was industry wide
(a) Economic interests were certainly important
c. Example: In the whaling industry it is customary that the ship that
lanced and killed the whale was the owner, even though it sank and
floated to the surface and found by someone else. Therefore, a ship
that kills the whale recovered against defendant who bought it at an
auction from the person who found it on the beach. Ghen v. Rich, 8
F. 159 (1881).
1.) Rules are designed to achieve ends the instrume nt al nature of
law
2.) A person who does not want to capture cannot interfere
4. The Rule of Capture and Other Fugitive Resources
a. Definition: Resources that move from one place to another under
their own power like oil and gas and water. Possession of the land
is not necessarily possession of the fugitive resource.
5. Harold Demset z, Towar d a Theory of Property Rights
a. Note: “EXTERNALITIES” failure to consider the effects (costs and
benefits) on others of your decisions regarding resource allocation.
C. Acquisition by Creation – “Ideas”
1. Introduction: the assertion is that if you create something then that
something is yours to exploit. The underlying idea derives from Locke, who
reasoned that you own the fruits of your labor in consequence of having a
property in your person.
2. General Rule - - No protection against imitation - - In the absence of
some recognized right at C/L, or under the statutes, a man’s property is
limited to the chattels which embody his invention. Others ay imitate these
at their pleasure. There is no property rights in ideas, but there may be a
statutory one conferred by Congress in the area of trademark or copyright
– none here. Cheney Bros. v. Doris Silk Corp. Compare International News
Service v. Associated Press, holding that AP had a “quasi - property”
interest in the news it had gathered and could stop competitors from using
it until its commercial value as new had passed away.
3. Douglas G. Baird, Common Law Intellectual Property and the Legacy of
International News Serice v. Associated Press
4. In Smith v. Chanel, Inc., a case that involved a perfume company’s right to
claim in advertisement s that its product was “the equivalent of the more
expensive Chanel No. 5,” the Court upheld the perfume company’s right to
copy the unpatented Chanel No. 5. In rejecting the district court’s
reasoning that the values in the Chanel tradem ark required great
expenditures of money, effort and ability, the court found Chanel was not
entitled to a monopoly even though it created the product. The copyist
4
