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Property Outline

Property Outline

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Published by Bg1114
Property outline - Oren
Property outline - Oren

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Published by: Bg1114 on Jan 20, 2013
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11/09/2013

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PROPERTY OUTLINE
Spring 2011Prof. Oren
RULE OF CAPTURERule of Capture vs. Rule of Reasonable Prospect:Pierson v. Post:
-
 
FACTS: P chasing fox on a commons when D intercepts and kills it.
-
 
ISSUE: How do you gain property rights in an unowned object?
-
 
RULE: Btwn a prior possessor and subsequent possessor, the prior possessorwill win. (but not the case here)
o
 
Rule of Capture
: Must physically hold or mortally wound the animalin order to have property rights.
o
 
Rule of Reasonable Prospect
: Whoever first has a reasonableprospect of capturing the animal.
Prefer Capture to Reasonable Prospect bc:
-
 
It is easier to figure out who captured the fox first than it is to figure outwho first had a RP.
o
 
Advantage to this certainty is that parties know beforehand whattheir rights are, and will behave accordingly, and there willtherefore be fewer cases.
-
 
Capture creates an incentive to become a better hunter w/ more accuratetools of capture.
o
 
If you are hunting for fun, then RP is better for you, but if you aretrying to encourage the killing of foxes, Capture makes more sense.
Bright line rules have more influence than less definite ones:
-
 
However, the higher the stakes and more varied the fact situations, themore flexible the rule should be, and it will be more worthwhile to gothrough the costs of making a case-by-case determination.
Constructive Possession:
-
 
RULE: Trespassers on land should not be entitled to possession bc wildanimals on land are in the possession of the land owner.
-
 
POLICY REASONING: This rule discourages trespass, so it is not necessary toinvest in lots of security to keep others out.
o
 
Possession in fact is not always needed for legal possession, nordoes possession in fact guarantee legal possession.In assigning property rights, must consider:(1) Does giving this person property rights serve policy goals?(2) Who else is claiming rights? You can award to someone who is notthe true owner, just whoever has the best claim at the moment.
Custom and Common Usage
 –
The customs of hunters might not serve the world at large, so weshould consider external interests as well as those within the industry to decide whose customshould apply.
Ghen v. Rich
:
-
 
FACTS: A whaler killed a whale, another person found it on the beach andsold it to another person, ignoring the custom of notifying the whaler.
 
-
 
ISSUE: The person who found the whale did not transfer any property rightsto the person he sold it to, as he did not have any to begin with?
-
 
RULE:
Before you follow custom, look at society’s interest
 
 –
assigningproperty rights is ultimately a matter of policy. Here we follow the customof the whaling industry bc it is consistent with policy goals of wanting to killmore whales and therefore increase fuel supply.
o
 
Even in the absence of custom, here we want the whaler to win bcthey were the ones who actually captured the whale, and then didall that was possible to take the animal into their possession.
o
 
In Pierson, the custom of Reasonable Prospect did not serve policygoal of killing more foxes, so the ct. did not follow it.
Greenpeace Hypo
: Intercepting whales from whalers for the policy goal of protecting the whales.
-
 
Pierson would ask if this serves society. Is whale hunting still a valuableexercise?
-
 
Greenpeace is interfering with capture not competing for it. But does this
support society’s goals?
 
Keeble v. Hickeringill
:
-
 
FACTS: Guy builds a duck trap to capture and sells ducks, D scares ducksaway on purpose, not trying to kill them in competition.
o
 
In Pierson, D was in competition w/ P for the same goal of killing thefoxes. Here, D does not share the goal of killing ducks, but rather
hindering their killing. (i.e. D’s conduct does not serve the societal
goal.)
-
 
ISSUE:
Is D’s conduct desirable to society
?
-
 
RULE:
Competition vs. interference
 –
Rule of capture is not enough.
o
 
So, P wins if we want P to contribute ducks to society/the market,and if D is interfering and not competing w/him.
Schoolmaster Hypo
: It is one thing to compete for students by starting a newschool, but another to scare them off to prevent them from attending the oldschool.
-
 
To decide otherwise would give the schoolmaster a monopoly, and result inless education for students.
-
 
Being the first schoolmaster only gives you some rights to legal protection.(Legal right to be free from intimidation of students.)
RULE:
 
Assignment of rights is a matter of policy, and one can be considered the ownerfor some issues and not others, depending on the goals
.
-
 
EXAMPLE
: Where the gov’t owns the
wild geese in one case, but not theother.
o
 
Case 1
 –
Want to regulate the geese hunting, and the best way to
do so is say that the gov’t owns them.
 
o
 
Case 2
 –
 
No policy goals served by making gov’t liable for damage
caused by the geese. If it was, this would encourage overhunting of the geese.
-
 
Trapping an animal gives you property rights over the animal in general.
 
o
 
Policy reasoning is that there is less incentive to trap if you knewthat someone else could come along and take it.
 
o
 
Exception is where another has constructive possession bc it wastrapped on their land.
-
 
If the animal escapes from you, you lose rights to the animal
.
o
 
Policy reasoning is that this will create an inducement to hang ontight to the animal, mirroring the original goal of trapping theanimal in the first place.
o
 
Exception is if the animal has
Animus Revertendi
, or a tendency toreturn to you
 –
then it is considered domesticated.
-
 
Owners of domesticated animals do not lose title when the animalsescape
.
o
 
Policy reasoning is this creates an incentive to domesticate animals,which makes them less dang
erous and easier to use for society’s
benefit.
o
 
Example: A herd of domesticated deer that graze on the commonsduring the day and return at night. If a hunter kills one, ask whethera reasonable hunter would have been able to tell that they weredomesticated?
 
The more likely it is that the hunter should have known, themore likely we are to hold him liable in killing the deer, andmore likely to hold the domesticator as the owner of thedeer for these purposes.
Applications Beyond Animals
:
Hammonds v. Central KY Natural Gas
:
-
 
FACTS: Oil or gas sitting below the land of multiple owners; Owner A drill
and collects the oil that is under both A and B’s land.
 
-
 
ISSUE: Who owns the oil?
-
 
RULE: Under the Rule of Capture, A owns the oil, the same as a wild animal.
-
 
POLICY REASONING: It is impossible to tell whose land the oil was under, sothis is a way to encourage the collection of a valuable resource, just likewhale oil.HYPO:
What if the natural gas is collected, and then is stored in an exhaustednatural gas formation?
(Cheapest and safest alternative for storage)
-
 
The court could reapply the rule of capture a second time, but this wouldmean the gas company would have to find a different, less efficient meansof storage.
-
 
Alternatively, the gas company could make an agreement with all of theindividual owners of land above the formation. However, depending on the# of owners, this could be difficult. (i.e. high transaction costs)
o
 
The Hold-out Problem
: Every owner has veto power, and thereforethe incentive to hold out for a higher price. Deal is increasinglyunlikely as the # of ppl goes up.
-
 
Better to analogize gas that has been captured once as a domesticatedanimal
.
o
 
Policy reasoning is that while letting a wild animal escape is a badthing, letting gas escape is a good thing, and so using the rule of capture here does not really work.

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