OUTLINE: PROPERTY (SHERWIN)
Property in General.
What is property?
Property is purely creature of law -- w/o law, no property.
thing plus bundle of rights it comes w/, e.g., possession, use, and disposal.
Property law creates incentives to use resources efficiently.
Characteristics of property rights: (1) universality – all things are ownable; (2)
exclusivity; and (3) transferability.
to property is qualified.
Individual’s right sometimes
trumped by societal interest.
(Farmer unsuccessfully tried to prevent gov’t
social workers from treating migrant laborers living on his land.), 1971.
societal interest trumps depends on which theory of property you believe in, e.g.,
liberterian, Marxism, Lockean, utilitarian, etc.
Interests in land are
Majority -- owner of surface owns
everything above and below it.
Dissent -- one can’t own something he can’t use.
(A opened cavern to tourists.
B sued for portion of profits b/c cavern
under his land.), 1929.
Gov’t may condemn surface to build reservoir, but leave mineral
estate below it w/ former owner.
The Acquisition of Property (Personal Property).
Finding: Acquiring Possession by Finding Articles.
-- finders keepers.
-- object affixed to
the land belongs to the land.
-- silt that washes from A’s land to
B’s land belongs to B.
(A saw meteorite fall and dug it up.
replevin action b/c it fell on his land.), 1892.
A relied on occupancy, B on
Court held for B b/c meteorite more affixed than movable.
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.
Purpose of rule to promote competition.
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
Thus, if A drills, then becomes race who pumps more; party
who drills 1
not entitled to entire deposit.
Gov’t condemns $1,000 land w/ $1 MM oil underneath.
only $10,000 b/c oil not his until he takes possession.
A injects oil into cave under B’s land to store it.
trespass action for storage fee.
A wins b/c he gave up possession when he