General Info About Property law

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  1. General Info About Property law

  • address relationships of people to each other and things

  • title is a relative concept

  • there is no such thing as title registration

  • real property = land

  • property rights are not absolute + must be backed by Gov.

  • landownership = ownership of natural resources

possible causes of action:

  • ejectment: remove someone from possession

  • replevin: recovery of the item

  • trover: award of damages

  • conversion: wrongful exercise of ownership rights of personal property of another


  • private v. public law

  • common law

  • constitutional issues

  • contracts

  • economic doctrines

  • history


  • What is property?

  • What are the attributes of property?

  • How are property rights created? (major theme of Chapter 1)

  • What is the role of “first in time”?

  • What is the role of possession in the formation of property interests?

Reasons to have private property

  1. maintain peace + equality

  2. control greed

  3. allocate resources + organize society

  4. Locke’s Labor theory

  • if you labor + mix labor with land, you acquire greater right to it than others

  • Haslem v. Lockwood – P won trover action for piles of manure because P worked to collect it

  1. Acquisition by Discovery

  1. Description

  • discovery = finding of unknown territory (America’s discovery title to England/king)

  • discovery + conquest are not really relevant today (not much unchartered land)

  • discovery by savages does not count

  • Locke says savages did not labor enough to get title

  1. Johnson v. M’Intosh (S.Ct.) (3)


  • P + D are successors to the original title holders

  • P got title from Indians

  • D got title from U.S. Gov.

  • issue is whether Indians have right to have title to land

  • P’s cause of action is ejectment (could also be considered acquisition by capture)


  • U.S. got land through discovery not entirely accurate, more like theft or conquest

  • court distinguishes discovery v. conquest & appropriation by force v. theft

  • conquest = right to displace former holder of property by force, maintained by force, and involves living side-by-side with Indians or absorbing them into white culture

  • true conquest is impossible because Indians are “savages” and cannot live with “white” settlers

  • Indians sacrificed right to possession because they would not assimilate to “whites”

  • Marshall seems to acknowledge that U.S. got land through something like conquest

  1. Eurocentric attitudes with respect to Johnson

Conflict of Law issue (9)

  • conqueror’s rules are applied = U.S. law + standards are applied

  • not much knowledge or interest in Native American law

Common Law

  • original property rules - created to control infringement of property rts. by European countries

  • this common law is applied in U.S.

  • court believes it is not creating rules, but is simply applying well-established rules

Property issue: (9)

  • Indians don’t possess land because they did not cultivate and improve land like white settlers would

First in Time

  • Indians were 1st in time but this does not matter

  • 1st in time may only refer to 1st since white settlers arrived to U.S.

Institutional Competence

  • which institution in society is best suited to make the necessary decision

  • S.Ct – least suited to make decisions with respect to foreign affairs

  1. Acquisition by capture

  1. Issues/problems to consider

  1. 1st in time

  2. Locke Labor Theory

  3. you can analogize to capture of animals + resources

  4. oil & gas has real value only after it is extracted

  5. difficult to talk about ownership in this context

  6. encourages over-production + race to be 1st in time to capture

  • too much access to same reservoir pressure will dissipate difficult to remove oil & gas

  1. A & B could negotiate unitization = agreement to work together

  • state may force involuntary unitization because public has interest in oil & gas

  1. Directory: sites -> default -> files -> upload documents
    upload documents -> Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case
    upload documents -> Federalism – The Structure of Government
    upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
    upload documents -> Property with Professor Vicki Been
    upload documents -> Property Outline – Professor Upham, Spring 2000
    upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
    upload documents -> Complex federal investigations
    upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
    upload documents -> Pricing v. Sanctions
    upload documents -> Constitutional Law – Thematic Outline

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