Cornell Law - Property Outline (Sherwin, 1998)

Cornell Law - Property Outline (Sherwin, 1998) - Fall 1998...

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Fall 1998 OUTLINE: PROPERTY (SHERWIN) . PART I. Property in General. 1. What is property? 1. Property is purely creature of law -- w/o law, no property. Property is thing plus bundle of rights it comes w/, e.g., possession, use, and disposal. 2. Property law creates incentives to use resources efficiently. Characteristics of property rights: (1) universality – all things are ownable; (2) exclusivity; and (3) transferability. 3. Exclusive right to property is qualified. Individual’s right sometimes trumped by societal interest. Shack (Farmer unsuccessfully tried to prevent gov’t social workers from treating migrant laborers living on his land.), 1971. When societal interest trumps depends on which theory of property you believe in, e.g., liberterian, Marxism, Lockean, utilitarian, etc. 4. Interests in land are severable . Majority -- owner of surface owns everything above and below it. Dissent -- one can’t own something he can’t use. Edwards (A opened cavern to tourists. B sued for portion of profits b/c cavern under his land.), 1929. (1) Gov’t may condemn surface to build reservoir, but leave mineral estate below it w/ former owner. PART II. The Acquisition of Property (Personal Property). 1. Finding: Acquiring Possession by Finding Articles. 1. Occupancy rule -- finders keepers. Accession rule -- object affixed to the land belongs to the land. Accretion rule -- silt that washes from A’s land to B’s land belongs to B. Goddard (A saw meteorite fall and dug it up. B brought replevin action b/c it fell on his land.), 1892. A relied on occupancy, B on accession. Court held for B b/c meteorite more affixed than movable. 2. Rule of capture (ferae naturae) – fox belongs to nobody until captured. If you capture fox, it belongs to you; if it escapes, no longer belongs to you. Rationale – society benefits from capture of foxes; rule promotes competition, resulting in more captures. 1. Competition. Purpose of rule to promote competition. 2 parcels of land w/ common pool of oil. B drills and pumps; oil under A’s land moves to B’s well. B owns pumped oil. Faster oil pumped, more society benefits. Thus, if A drills, then becomes race who pumps more; party who drills 1 st not entitled to entire deposit. 2. Gov’t condemns $1,000 land w/ $1 MM oil underneath. O gets only $10,000 b/c oil not his until he takes possession. 3. Escape. A injects oil into cave under B’s land to store it. B brings trespass action for storage fee. A wins b/c he gave up possession when he 1
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releases oil. But, if B drilled, then oil would belong to him. 3. Possession requires (1) intent to control and (2) physical control. Rationale – discovery not enough to establish possession; otherwise, no incentive to retrieve (and return property to socially useful purpose), and others barred from trying to do so. Eads (Ship sinks w/ cargo of lead. 30 years later, A finds ship, marks trees, floats buoy, but ran into delays. Later, B finds and salvages. B wins.), 1861.
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