The Concept of Property

What is Property?

Definition: A right among people that concerns things
Legal positivism: property exists only to the extent that it is recognized by the government
Types of property
- Real property
- Tangible personal property
- Intangible personal property
- Fixtures

Five Property Theories

1) First Possession
2) Labor Theory
3) Utilitarian Theory
4) Civic Republic Theory
5) Personhood Theory

First Possession

We recognize a person's ownership of property simply because he was the first person to take possession of it
First come, first serve
Ex: defendant caught it first (Pierson v. Post)

Labor Theory

We recognize a person's ownership of property because they acquired it through their labor
John Locke reasoned that each person was entitled to the property produced through his own labor He argued that when a person "mixed" his own labor with natural res

Utilitarian Theory

We recognize a person's ownership of property not only to benefit themselves, but because recognizing a persons' title will promote the welfare of all members of society
Traditional utilitarian theory - we recognize property in order to maximize the overa

Civic Republic Theory

We recognize a person's ownership of property because this provides that person with the economic security necessary to make political decisions that serve the common good
Civic republican theory posits that property facilities democracy
A right to privat

Personhood Theory

We recognize a person's ownership of property should merit special protection when it is a generational attachment (sentimental attachment)
Personhood theory argues that property is necessary for an individual's personal development
Under this view, each

Pierson v. Post

Holding: Property in wild animals is acquired by occupancy, meaning at least mortally wounding or capturing from a distance, and at most physical possession. Mere pursuit of a wild animal is not enough to confer property rights.
In this case, Post was mer

Defining "Possession

Kill or capture (MAJ)
Pursuit of reasonable chance (Dissent)
- Customs (overrules traditional ownership)
- Release of a wild animal (overrules traditional ownership)
Ratione soli or by reason of the soil
- If you own plot of land - you own anima

White v. Samsung Electronics America, Inc.

Holding: The common-law right of publicity can protect a celebrity's identity from unauthorized commercial exploitation. A court may consider the surrounding circumstances in determining whether a celebrity's identity has been used.

Property as a "bundle or rights

a. Rights to transfer
b. Rights to exclude
c. Right to use
d. Right to destroy

Bundle of Rights: Implication

Property rights are defined by government, not natural law
Property rights are relative, not absolute
Property rights can be divided among new people
Property rights may change as law changes (e.g., airplane)

Right To Transfer

As a general rule, any owner may freely transfer or alienate any of her property to anyone
Occasionally, the law restricts who can transfer or obtain property.
More commonly, the law regulates what property can be transferred
- For example, some property

Johnson v. M'Intosh

Shift away from absolute ownership, there are limitation on ability to transfer
Holding: land title transfers are only valid when made under the rule of the currently prevailing government
Property rights are defined by the government

Moore v. Regents of the University

Explored rights of transferring property
Court concluded that cut out materials are different
- Rights were terminated at this point
Individual rights are trumped by society's need to advance medical technology and knowledge
- Policy consideration were a

Right To Exclude

Each owner has a broad right to exclude any other person from his property, subject to privileges such as consent and necessity
- For example, if you hold title to a tract of land you may prevent anyone else from entering upon it
A landowner's right to ex

Jacque v. Steenberg Homes, Inc.

Sets up basic premise that people have a right to exclude
- The right to exclude is "one of the most essential sticks in the bundle of rights that are commonly characterized as property."
- A right is illusory if it is unenforceable. Further, repeated tre

State v. Shack

The ownership of real property does not include the right to refuse access to individuals providing government services to workers who are housed on the property.

Right To Use

Traditionally, a landowner had the absolute right to use his property in any way he wished - as long as he did not harm the rights of others.
The spite fence and nuisance doctrine help define the limits of the right to use

Sundowner, Inc. v. King

Under common law, no property owner has the right to erect and maintain a structure for the sole purpose of damaging a neighbor.
As a general rule, one element of proving a spite fence case is to show that the defendant acted out of malice

Private Nuisance

The common law doctrine of nuisance is the traditional method used to resolve land use conflicts
A private nuisance is an (1) intentional, (2) no trespassory, (3) unreasonable, and (4) substantial interference with (5) the use and enjoyment of the plainti

Right To Destroy

The right to destroy is a logical adjunct to the right to use, but difficulty arises when an owner seeks to destroy property that retains substantial value (like a renowned painting, historical papers, or a new mansion)

Eyerman v. Mercantile Trust Co.

Although a landowner has very few restraints on what he or she may do with the land while living, when the owner attempts to compel his successor in interest to do what is against public policy, a court may deem the condition void.
Destroying Johnston's h