Load Previous Page Objects, subjects, and types of possessory interests in property The discussion of property hinges on identifying the objects things and subjects persons and groups of the jural relationships with regard to things in Western legal systems generally.
There follows a treatment of possession and ownershipcategories that are closely related historically in the West. Then the discussion deals with divisions of ownership and in so doing contrasts the divided ownership system of the Anglo-American law with the devices in the civil-law system that achieve many of the same practical results while employing a quite different set of concepts.
The section closes with the procedural protection of property interests.
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Objects: What can be the object of property? Except in the United Stateswhere defining something as property automatically entitles it to constitutional protection, there is less discussion in the Anglo-American legal system of whether a given interest or a given thing should be classified as property.
Nonetheless, Anglo-American law shows broadly the same characteristics as the civil law. Almost all tangible things are conceived of as being capable of supporting property interests; some intangibles are treated the same as tangiblesand some are not. Water Water and the land under and bordering on water are everywhere in the West treated differently from other kinds of property.
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Modern law in the West tends to give substantial power over water and land near water to the state. Beyond that the regimes vary substantially from jurisdiction to jurisdiction see riparian right ; territorial waters.
Objects, subjects, and types of possessory interests in property
The United States has a well-developed law concerning the taking of water from a navigable or nonnavigable stream. In the eastern part of the United States the right to take water from a stream is dependent on ownership of lands adjoining the stream.
In the western part of the country the right to take water tends to depend on having first taken it prior appropriation. In both parts of the country public regulation has increasingly come to the fore. Other natural resources Other natural resources have, in some Western legal systems, been removed from normal private ownership.
The tendency on the Continent is to make all minerals subject to state ownership or at least to extensive state control. Historically in England gold, silver, and lead were reserved to the crown.
In the United States private ownership of minerals has been the rule, subject to considerable state regulation in the name of conservation.
Just as the systems of private ownership with regard to water have tended to divide between those civil code options that award the water to the person who has it on his land and those that award it to the person who discovered or appropriated it, civil code options too those Western systems civil code options allow private ownership of minerals alternate between giving them to the landowner and giving them to the discoverer.
The human body Throughout the West the human body, living or dead, is not an object of private property. This fact has raised difficulties in many legal systems.
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For example, if the human body is not property, the question arises of what is happening when someone makes a gift of or sells blood or bodily organs or makes a testamentary disposition of his body for medical purposes. Many jurisdictions have special legislation on this topic, but the conceptual difficulty is by no means resolved. Possession of tangible things Possession of a tangible thing is, at least in the West, a concept that antedates conscious thought about law.
Possession is a fact, the Roman jurists said, formed of an intention and a thing animus et corpus.
English law also had to deal with a fairly complicated social fact, seisinthe process by which a lord put his man in possession of a tenement. In English law the concept of seisin was also applied to tangible things other than land, things that were not subject to lordship. Any legal system that begins its property law with a concept of possession is going to have a property law biased in favour of tangible things.
It is easy for Westerners to conceive of possessing almost anything that can be touched.
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It is far more difficult to conceive of possessing an abstraction like a right, a privilege, or a power. Westerners who are not lawyers will say that they possess their watches or their land; they will rarely say that they possess their bank accounts or the power to convey their land. Possession of intangible things Civil lawcivil code options Roman, has tended to deny the possibility of legal possession of anything that cannot be touched.
English and American law, by contrast, generally are more open to the notion that one may be possessed of a right, a power, or a privilege. In the case of land, civil law tends to give possession to the owner of the land and to be reluctant to recognize property rights in anyone other than the owner.
Anglo-American law, however, recognizes multiple possessory rights in land and hence tends to speak not of ownership make money in the land but of ownership of an interest in land—i. Government-granted rights as property The types of intangible rights granted by governments expanded greatly in the 19th and 20th centuries.
The oldest of these are the exclusive rights given by states and international bodies to encourage and protect authors, inventors, manufacturers, and tradesmen. Copyrightthe exclusive right to prohibit the copying of a piece of writing or a work of art or music, is almost universally regarded as a property right.