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Property Outline - Property PROPERTY POSSESSION SOME...

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Property \ P ROPERTY & P OSSESSION : S OME F UNDAMENTALS & T HEORETICAL B ACKGROUND I. Acquisition of Property by First Possession (formerly unowned) A. “Discovery” or Conquest ( Johnson v. M’Intosh ) 1. Discovery Rule– 1 st discoverer has superior right vis a vis other Europeans → 1 st in times wins; 1 st possession ownership (more than “mere occupancy”) 2. Justification – 1 st in time → 1 st possession a. European settlers saw Native Americans not as possessors, just occupants→ b. Europeans (and subsequently the US) claimed to have the superior right of dominion. 3. Relativity of Title – Native Americans were simply left with right of occupancy; they lost their right to transfer the land 4. Is 1 st Possession a good rule? a. Pros i. Encourages investment, e.g. in discovery, expansion, and cultivation ii. Easily administered iii. Settled expectations (has been like this forever and would be extremely difficult to change) b. Cons i. Might makes right – likely to lead to unequal distribution of assets ii. Not very easy to determine what has already been “discovered” iii. Arbitrary (no logical preference) iv. Could lead to inefficient allocation of resources 5. Justification for 1 st Possesssion a. Some people try to justify 1 st possession normatively under the Labor Theory . Property in ourselves add labor to unowned property now own the property What if more than 1 laborer? Why 1 st laborer? How much labor counts? Extent of transformation or extent of labor? 6. 6 General Themes about Property (derived from Johnson v. M’Intosh ) a. Chain of title i. Rights are only as good as the previous owner from which they came; can never transfer more sticks to a subsequent owner than he himself has b. Severability of title i. Ownership rights are severable. Right to property involves a bundle of sticks . Title does not necessarily confer all sticks in the bundle. In other words, a bundle of rights does not necessarily equate to exclusive ownership of the property. Ownership rights are different with respect to different persons. Exclude Use & Enjoy o Right to use profitably for economic value Possess Convey (give), Alienate (sell) & Devise (by will) c. Relativity of title i. Ownership rights are relative; which sticks one has determines to whom a claim of title would stand up against ii. In a dispute for personal or real property, a party may not prevail by asserting a superior claim of a 3 rd party or, in other words, challenge the claim of his opponent by reference to another’s claim. d. Possession is a legal conclusion, not an observable fact i. One is not constantly grabbing/holding all the sticks in his bundle – they are not always observable → property rights are a legal conclusion, not an observable fact.
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