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I. What is Property?
Property is not absolute, it is socially contingent.
Property is study of social construct, relationships between people regarding resources.
Property law is rules that governing those relationships (access, exclusion, other forms of control) that are legally enforceable.
Philosophical underpinnings Locke’s labor theory: because you own your own labor, when you mix that labor with something unowned by anyone, you own the resulting mixture (e.g. dig up minerals). Utilitarianism (Hume): accept protection of property because scarcity drives our world and the need to recognize and protect ownership. Utility and efficiency: property rights leads to internalization of externalities (recognition of property rights internalizes benefits and losses from that property, rather than leaving society to bear them). Theories of property and personhood: that may be defined by identification associated with property. Innovation(?): in owning property, have more incentive to develop and innovate that property, which can lead to the betterment of society.
Policies Reward productivity and foster efficiency Create simple, easily enforceable rules Create rules that are consistent with societal habits and customs Produce fairness in terms of prevailing expectations of fairness
II. Possession
I. Unowned things become property by right of first possession. II. Therefore possession implies property right at times, but not always. A. Thieves are wrongful possessors B. Finders only have property claims that are relative to the claims of others C. There is no property right to excised cells D. There is generally right to exclude, except in cases contrary to public policy III. Policies A. Put resources to best and most efficient use OR respect individual ownership / dignity B. Keep peace, order, and continuity in the law (Jacques: you have control over your own property)
A. Possession of Property
Intersection between first possessor and right to exclude: ∏ right to possession might conflict with ∆ (landowner) right to exclude.
1. Capture/Interference of Capture (un-owned property)
Interchangeable theories governing the acquisition of property: actual possession and industry custom.
A. RULE: the first person to take possession of a thing owns it (Rule of Capture). II. Acquisition by Actual Possession A. RULE: one takes occupancy of a wild animal by: 1. Taking physical possession or 2. Trapping it so that it cannot escape or 3. Wounding it with the intent to take physical possession and control. 4. Pursuit is not enough. a. Pierson v. Post: ∏ and ∆ were both hunting a fox. ∆ knew ∏ was in pursuit, but while ∏ was in pursuit, ∆ killed the fox and took possession of it. Court: found ∆ to have possession. B. Policy for 1. Keep peace, order, and continuity of the law 2. Foster competition by rewarding person who captures the animal. 3. Protect investment in resources. 4. Ease of administration a. Capture is an objective act and easier to define than pursuit. b. Rule of capture promotes certainty, efficient administration, and ensures that courts are not flooded with wasteful claims regarding pursuit. C. Policy against 1. Might be better to adopt trade custom (expectations, risk-benefit, industry protection) 2. Conduces extermination in the species III. Acquisition According to Trade Custom A. RULE: capture is governed by trade custom. 1. Glen v. Rich: trade custom was for whaler to use bomb-lances to kill whales, then they would wash up on shore a few days later, where a finder would call whaler and get finder’s fee. Finder (Ellis) never called ∏ and sold to ∆ who said custom does not uphold. Court: upheld trade custom (for ∏). Note: as opposed to declaring ∏ had possession because mortally wounded the whale. B. Policy for 1. Preserve peace and stability in the law: custom embraced by entire industry and agreed to for long time. Whaler behavior depends on knowledge of this law. 2. Realistic: necessary for survival of industry. 3. Forward-looking: promote innovation in the system. 4. Rule likely created to maximize benefit of group that created it, so this maximizes those benefits. C. Policy against 1. Risk/benefits? 2. Better insurer? 3. Desired consequences? 4. Externalities on society? IV. Interference of Acquisition A. Interference for competition is allowable. Pierson v. Post B. Malicious interference not for competition is not allowable. 1. Keeble v. Hickeringill: ∏ had duckpond for his livelihood. ∆ fired shots to scare the duck and ∏ sued for malicious interference of trade. Court: found for ∏. This protects ∏’s livelihood, not his possession, because ∏ did not “possess” the ducks. [Tort action; ∏ did not possess] 2. Policy for a. Protect and promote overall duck industry (∆ action did NOT improve society through competition – e.g. better schools – but instead acted as a dead weight – e.g. fewer ducks to eat); that is, ensure ducks are still in some pond b. Protect ∏ investment 3. Policy against a. Would be strongest in society which supported ∆-like behavior (e.g. anti-duck killing sentiment)
2. First Possession and Creation (Right to Own Body)
I. The Claim – Conversion (tort): wrongful exercise of ownership rights over the personal property of another II. RULE: Conversion does not extend to scientists’ use of cells in research because excised cells are not personal property. A. No judicial precedent. This is something the legislature must determine. 1. Wrongful publicity cases are irrelevant and misconceive nature of genetic materials involved in this case. Cells are not unique to ∏. B. CA statutory limitations on excised cells C. Subject matter of ∆ patent cannot be ∏ property 1. The patented cell line is factually and legally distinct from cells taken from ∏’s body. There is inventive effort by ∆ that is patented, beyond discovery of naturally occurring raw materials. 2. This is rule of accession: adding own artistic skills to property in order to improve upon it and change its original properties. D. Against relevant policy considerations 1. Protection of competent patient’s rights to make autonomous medical decisions (could be addressed by informed consent and fiduciary duty) OUTWEIGHS protection of civil liability of parties engaged in socially useful activities (e.g. detached researchers working to promote science). 2. Chill medical research E. Problems in this area are better suited for legislative resolution F. Conversion is not necessary to protect patients’ rights G. Do not encourage/allow commodification of human body Note: ∏ could instead bring claim of breach of fiduciary duty against his own doctors.
3. Corollary Right to Possession: Right to Exclude/Include
I. Right of possession may contain corollary right to exclude others from possession. A. Right to exclude: Jacque v. Steenberg Homes (∆ went across ∏’s land to deliver mobile home) 1. Person has right to exclusive enjoyment of his own land for any purpose which does not invade the rights of another person. 2. Individual interests a. Importance of property to individual. 1. Right to exclude others from land is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” 2. US Constitution requires that state cannot deprive person of property without due process, and cannot take for public purposes without just compensation. b. Actual harm from trespass (violation of rights). c. Fear of potential harm (adverse possession). 1. Jacques v. Steenberg Homes: ∏ had prior problems with neighbors, resulting in loss of property to neighbor from a continued trespass – “adverse possession.” Adverse possession (prescription): continued occupation of property over period of time that leads to acquisition of title from landowner. 3. Societal interests a. Punishment. b. Deterrence of future trespass. 1. Jacques v. Steenberg Homes: Only penalty was $30 criminal citation and $1 nominal damages, but that would probably not induce economic incentive to not trespass. Punitive damages would provide this extra incentive to deter. c. Preserve integrity (and reliability) of legal system and landowners’ confidence in system. d. Prevent “self-help” remedies (keeping “law and order”). People expect wrongdoers to be punished, and punitive damages serve deterrence function. 3. Lawyer advice for ∆ a. Include clause in contract that makes it purchaser’s responsibility to ensure delivery (shift risk) or does not make delivery necessary until clear (non-snowy) roads b. Wait for better weather (but ∆ would not get paid as soon so might not like this option) c. Go to government agency to obtain rights (?) d. Include potential cost of using existing road in price of product e. Attempt to bargain with ∏ to use his property and what ∆ can offer to pay (give up part of profit). However, this might not work (and did not work) because of ∏’s misinformation that they might lose land through adverse possession. B. No right to exclude: State v. Shack (∆ refused to allow social workers to meet with migrant workers in private) 1. Law dictates that ownership of property does not include right to bar access to governmental services available to migrant workers and hence no trespass occurred in this situation. 2. Policy a. Protect human values (dignity, personhood, destiny, freedom from isolation, freedom to see whom they want in their own quarters). b. Property rights cannot include dominion over the destiny of persons such that the person’s well-being is sacrificed. c. State v. Shack: in this situation, migrant farm workers are in specific need of this assistance (ends are desirable) and so assistance must be allowed (means must be made available). Statutes require open communication to fulfill mandates of statute. 3. Bottom line: Property rights are not absolute; one should use his property as not to injury the rights of others. 4. Lawyer advice for ∆ a. Set up meeting in another place? Practicality: transportation and time-off. b. Not provide housing? Probably not, this would be destructive to migrant farm workers and potentially discriminatory. c. Require workers to waive right to see ∏? 1. Probably not, there are some rights that a person can not waive and this might be restriction on civil liberty (right to government assistance and funding). This might be unconscionable. 2. Economists would say that this could be achieved by increasing worker’s wage. Workers should be allowed to bargain for that right.
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