UNDERSTANDING AMERICAN PROPERTY RIGHTS
SECTION 1 : PROPERTY - A CONCEPTUAL FRAMEWORK
ROMAN FRAMEWORK & FURTHER DEVELOPMENT THROUGH THE ENGLISH CROWN
American Reception of the English Common Law; unwritten law; customary law; limit of legal memory; statutory law; stare decisis; foundation of law in Roman constructs.
DUALITY OF "OBJECT" & "OWNERSHIP" AS PROPERTY
Status of owner - proprietor or domini; right of exclusive control or use - domain or dominion; "private property."
PATER FAMILIAS & THE IMPERIUM
Rights of a Roman citizen; "pater familias" and "patria potestas" (patriarchial dominion over persons and things); mode of contract; status; Imperium ("police powers"); Law of Rome - public and private; non-citizen Law of Nations; Law of Obligations (delict or torts.)
DOMINIUM - OWNERSHIP
Directum dominium; nudum dominium; usufructory dominium; dominium utile; "possessio."
JUS GENTIUM - LAW OF NATIONS
The denizen or non-citizen; inability to contract or convey; praetor peregrimus; Law of Nature or Natural Law.
LAND "OWNERSHIP" IN ROMAN TERRITORIES
Latin city-states; "Latin Rights"; non-Italian conquered territorial status; "dediticii- capitulants with no legal rights; Senatorial territories under governors; "imperial provinces" under Emperor's rule (included England); status of imperial lands as "ager publicus" held by possessors under revocable grant; Emperor as "pater familias" to territories; state monopolies and leases; latifundia; "coloni" (tenants); military "agri-decumates"; "coloniae" (colony); "free cities"; bureaucracy.
ROMAN AND FEUDAL PROPERTY LAW
OWNERSHIP - DUALITY OF TITLE AND POSSESSION
Res mancipi; res nec mancipi; mancipium; vindicatio; exceptio; "immovables" and "movables"; realty and personalty; delivery and "tradition"; incorporeal legal title; title.
"Vice of Title"; equitable and legal title; adverse possession or prescription; actio Publiciana; Quiritarian and Bonitarian rights; Roman Civil Law; Roman Equity; ripening of usucapion; jus duplicatum.
PRESCRIPTION & ADVERSE POSSESSION
Adverse equitable possession; prescription; ejection; Possessory Interdicts; Real Action in Law; acquiring ownership of the ager publicus; equitable possessory ownership; tenure; emphyteusis; "legal fiction" that possession was inherent in titled ownership; "Maxims"; feudalism; sovereign title and dominion; conditional fee title (feud or fief); subinfeudation; statute of limitations; acts establishing equitable possession; open and notorious use.
Res nullius; first possessor by right of occupancy; specific acts manifesting appropriation; mode of acquisition; Blackstone; Locke; "state of nature"; proprietary rights; private ownership through mixture of labor with object; protection of property as a fundamental purpose of government.
THE ENGLISH "CROWN" AND THE PREROGATIVE
Definition - adjective and noun
Prerogatives; international rights vested in the sovereign; conquest and discovery; Crown ownership of land and resources; royal privileges; public law and public trust; franchise.
Sovereign title; unappropriated, vacant or wastelands - public domain; "The sea and its arms"; navigable tidal rivers or "Royal Rivers"; private non-navigable rivers.
Admiralty droits; royalties and mines; reservation of resources.
"Res communes - things common to all"; ancient negative community; air, sea, shore, tidal navigable rivers; "wild" things - free flowing water; wild animals (ferae naturae).
Wild animals; transitory ownership in "ferae naturae - propter privilegium"; the right of hunting and fishery as an aspect of land ownership ("ratione soli";) acquiring property or "take" of an individual animal by occupancy and possession.
PRIVATE APPROPRIATION or "TAKE"
CALIFORNIA SURFACE WATER RIGHTS (Surface Water Primer)
Creation of the "Royal Forest" on the basis of sovereign dominion; regulation as an aspect of the severability of hunting rights for separate grant; "foris" - exclusion from the common law; Magna Carta; the Forest Charter and forest law.
PUBLIC LAW - de COMMUNI JURE - JUS PUBLICUM and PUBLIC TRUST
"Trusts"; alienability and purpresture; "Commons"; Common piscary - fishery and fishing rights; several, free and common fishery; relationship of fishery to land ownership; Common right of free navigation;
RIGHT OF FISHERY
COMMONS, PUBLIC PLACE, PUBLIC GROUNDS
GRANTS OF FRANCHISE
Franchise - "public" privilege vs. a monopoly; chartered municipalities; chartered joint-stock trade corporations; the colony of Virginia as a franchise venture; private/public law - the right to regulate property as relates to a franchise and the right to regulate private property.
JOINT STOCK COMPANY - VIRGINIA COLONY
[It should be noted that the author is not an attorney. The comments presented are the author's opinion and should not be construed in any manner as legal advice or counsel. Concepts presented are intended for discussion purposes only. Full text of Supreme Court decisions may be located though "FindLaw" on the Internet. ]
Copyright 1998, 1999, 2000 Marcia H. Armstrong. All rights reserved. Permission granted for free non-commercial use and distribution with appropriate attribution to sources.