CITES BY TOPIC:  property

Property and Privacy Protection Page -Family Guardian Fellowship


Wikipedia: Property law (OFFSITE LINK) -Wikipedia


Wikipedia: Private Property (OFFSITE LINK) -Wikipedia


Wikipedia: Grant (law) (OFFSITE LINK) -Wikipedia


Property (OFFSITE LINK) -Online Library of Liberty


Separation Between Public and Private Course, Form #12.025


There is no private property in the United States-Voluntarist


63C American Jurisprudence 2d Property, Section 9: Classifications of Property-Lexis+


63C American Jurisprudence 2d Property, Section 11: Public and Private Property-Lexis+


5 U.S.C.S. §553: Rule Making -Annotated statute describing Congress' authority to make "rules" for its own property under Article 4, Section 3, Clause 2 of the Constitution


5 U.S.C.S. §553(a)(2) Shepards Report -Case law surrounding Congress' authority to make "rules" for its own property under Article 4, Section 3, Clause 2


Munn v. Illinois, 94 U.S. 113 (1876) Shepards Report -Case law surrounding Congress' authority to make laws or "rules" for PRIVATE property


28 C.F.R. §45.5-Personal use of Government Property


5 C.F.R. §2635.502-Personal and business relationships


5 C.F.R. §2635.702-Use of Public Office for Private Gain


5 C.F.R. §2635.704-Use of Government Property


Misuse of Position and Government Resources, U.S. Department of Justice


Use of Government Information, Property, and Time, U.S. Department of Justice, Department Ethics Office


Black's Law Dictionary, Sixth Edition, p. 1399:

PURCHASE. Transmission of property from one person to another by voluntary act and agreement, founded on a valuable consideration. Spur Independent School Dist. v. W. A. Holt Co., Tex. Civ.App., 88 S.W.2d 1071, 1073. In a technical and broader meaning relative to land generally means the acquisition of real estate by any means whatever except by descent. Kelly v. Southworth, 38 Wyo. 414, 267 P. 691, 692. Lindburg v. Bennett, 117 Neb. 66, 219 N.W. 851, 855. Oklahoma City v. Board of Education of Oklahoma City, 181 Okl. 539, 75 P.2d 201.

Quasi purchase. In the civil law. A purchase of property not founded on the actual agreement of the parties, but on conduct of the owner which is inconsistent with any other hypothesis than that he intended a sale.

Words of purchase. Words which denote the person who is to take the estate. Thus, if I grant land to A. for twenty-one years, and after the determination of that term to A.'s heirs, the word"heirs" does not denote the duration of A.'s estate, but the person who is to take the remainder on the expiration of the term, and is therefore called a "word of purchase." Williams, Real Prop,; Fearne,-Rem. 76, et seq.

[Black's Law Dictionary, Sixth Edition, p. 1399]


Black's Law Dictionary, Sixth Edition, p. 1207:

procuration.  Agency; proxy; the act of constituting another one's attorney in fact.  The act by which one person gives power to another to act in his place, as he could do himself.  Action under a power of attorney or other constitution of agency.  Indorsing a bill or note "by procuration" is doing it as proxy for another or by his authority.  The use of the word procuration (usually, per procuratione, or abbreviated per proc. or p.p.) on a promissory note by an agent is notice that the agent has but a limited authority to sign.

An express  procuration is one made by the express consent of the parties.  An implied or tacit procuration takes place when an individual sees another managing his affairs and does not interfere to prevent it.  Procurations are also divided into those which contain absolute power, or a general authority, and those which give only a limited power.

Also, the act or offence of procuring women for lewd purposes.

See also Proctor; Procure; Proxy.

[Black's Law Dictionary, Sixth Edition, p. 1207]


Black’s Law Dictionary, Second Edition, p. 955

“PROPERTY. Rightful dominion over external objects; ownership; the unrestricted and exclusive right to a thing; the right to dispose of the substance of a thing in every legal way, to possess it, to use it and to exclude every one else from interfering with it. Mackeld. Rom. Law, § 265.

Property is the highest right a man can have to anything; being used for that right which one has to lands or tenements, goods or chattels, which no way depends on another man's courtesy. Jackson ex dem. Pearson v. Housel, 17 Johns. 281, 283.

A right imparting to the owner a power of indefinite user, capable of being transmitted to universal successors by way of descent, and imparting to the owner the power of disposition, from himself and his successors per universitatem, and from all other persons who have a spes successions under any existing concession or disposition, in favor of such person or series of persons as he may choose, with the like capacities and powers as he had himself, and under such conditions as the municipal or particular law allows to be annexed to the dispositions of private persons. Aust. Jur. (Campbell’s Ed.) § 1103.

The right of property is that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. It consists in the free use, enjoyment and disposal of all a person's acquisitions, without any control or diminution save only by the laws of the land. 1 Bl. Comm. 138; 2 Bl. Comm. 2, 15.

The word is also commonly used to denote any external object over which, the right of property is exercised. In this sense i t is a very wide term, and includes every class of acquisitions which a man can own or have an interest in. See Scranton v. Wheeler, 179 D. S. 141, 21 Sup. C t 48, 45 L. Ed. 126; Lawrence v. Hennessey, 165 Mo. 659, 65 S. W. 717; Boston & L. R. Corp. v. Salem & L. R. Co., 2 Gray (Mass.), 35; National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 294, 56 C. C. A. 198, 60 L. R. A. 805; Hamilton v. Rathbone, 175 U. S. 414, 20 Sup. Ct. 155, 44 L. Ed. 219; Stanton v. Lewis, 26 Conn. 449;

Wilson v. Ward Lumber Co. (C. C.) 67 Fed. 674.

—Absolute property . In respect to chattels personal property is said to be "absolute" where a man has, solely and exclusively, the right and also the occupation of any movable chattels, so permanent, but may at some times subsist and not at other times; such for example, as the property a man may have in wild animals which he has caught and keeps, and which are his only so long as he retains possession of them. 2 BL Comm. 389.—Real property . A general term for lands, tenements, and hereditaments; property which, on the death of the owner intestate, passes to his heir. Real property is either corporeal or incorporeal. See Code N. Y. § 462 — Separate property . The separate property of a married woman is that which she owns in her own right, which is liable only for her own debts, and which she can incumber and dispose of at her own will.—Special property. Property of a qualified, temporary, or limited nature; as distinguished from absolute, general, or unconditional property. Such is the property of a bailee in the article bailed, of a sheriff in goods temporarily in his hands under a levy, of the finder of lost goods while looking for the owner, of a person in wild animals which he has caught. Stief v. Hart, 1 N.Y. 24; Moulton  v. Witherell, 52 Me. 242; Eisendrath v. Knauer, 64 111. 402; Phelps v. People, 72 N.Y. 357.

[Black’s Law Dictionary, Second Edition, p. 955]


Black’s Law Dictionary, Fifth Edition, p. 1095

Property. That which is peculiar or proper to any person; that which belongs exclusively to one. In the strict legal sense, an aggregate of rights which are guaranteed and protected by the government. Fulton Light, Heat & Power Co. v. State, 65 Misc.Rep. 263, 121 N.Y.S. 536. The term is said to extend to every species of valuable right and interest. More specifically, ownership; the unrestricted and exclusive right to a thing; the right to dispose of a thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. That dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects. The exclusive right of possessing, enjoying, and disposing of a thing. The highest right a man can have to anything; being used to refer to that right which one has to lands or tenements, goods or chattels, which no way depends on another man's courtesy.

The word is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal, everything that has an exchangeable value or which goes to make up wealth or estate. It extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal hereditaments, and includes every invasion of one's property rights by actionable wrong. Labberton v. General Cas. Co. of America, 53 Wash.2d. 180, 332 P.2d. 250, 252, 254.

Property embraces everything which is or may be the subject of ownership, whether a legal ownership. or whether beneficial, or a private ownership. Davis v. Davis. TexCiv-App., 495 S.W.2d. 607. 611. Term includes not only ownership and possession but also the right of use and enjoyment for lawful purposes. Hoffmann v. Kinealy, Mo., 389 S.W.2d. 745, 752.

Property, within constitutional protection, denotes group of rights inhering in citizen's relation to physical thing, as right to possess, use and dispose of it. Cereghino v. State By and Through State Highway Commission, 230 Or. 439, 370 P.2d. 694, 697.

[Black’s Law Dictionary, Fifth Edition, p. 1095]


Black’s Law Dictionary, Sixth Edition, p. 1106

Ownership. Collection of rights to use and enjoy property, including right to transmit it to others. Trustees of Phillips Exeter Academy v. Exeter, 92 N.H. 473, 33 A.2d. 665, 673. The complete dominion, title, or proprietary right in a thing or claim. The entirety of the powers of use and disposal allowed by law.

The right of one or more persons to possess and use a thing to the exclusion of others. The right by which a thing belongs to someone in particular, to the exclusion of all other persons. The exclusive right of possession, enjoyment, and disposal; involving as an essential attribute the right to control, handle, and dispose.

Ownership of property is either absolute or qualified. The ownership of property is absolute when a single person has the absolute dominion over it, and may use it or dispose of it according to his pleasure, subject only to general laws. The ownership is qualified when it is shared with one or more persons, when the time of enjoyment is deferred or limited, or when the use is restricted. Calif. Civil Code, §§678-680.

There may be ownership of all inanimate things which are capable of appropriation or of manual delivery; of all domestic animals; of all obligations; of such products of labor or skill as the composition of an author, the goodwill of a business, trademarks and signs, and of rights created or granted by statute. Calif. Civil Code, §655.

In connection with burglary, "ownership" means any possession which is rightful as against the burglar.

See also Equitable ownership; Exclusive ownership; Hold; Incident of ownership; Interest; Interval ownership; Ostensible ownership; Owner; Possession; Title.

[Black’s Law Dictionary, Sixth Edition, p. 1106]


Black's Law Dictionary, Sixth Edition, pp. 1323-1324

Right.  As a noun, and taken in an abstract sense, means justice, ethical correctness, or consonance with the rules of law or the principles of morals.  In this signification it answers to one meaning of the Latin "jus," and serves to indicate law in the abstract, considered as the foundation of all rights, or the complex of underlying moral principles which impart the character of justice to all positive law, or give it an ethical content.  As a noun, and taken in a concrete sense, a power, privilege, faculty, or demand, inherent in one person and incident upon another.  Rights are defined generally as "powers of free action."  And the primal rights pertaining to men are enjoyed by human beings purely as such, being grounded in personality, and existing antecedently to their recognition by positive law.  But leaving the abstract moral sphere, and giving to the term a juristic content, a "right" is well defined as "a capacity residing in one man of controlling, with the assent and assistance of the state, the actions of others."

As an adjective, the term "right" means just, morally correct, consonant with ethical principles or rules of positive law.  It is the opposite of wrong, unjust, illegal.

A power, privilege, or immunity guaranteed under a constitution, statutes or decisional laws, or claimed as a result of long usage.  See Bill of rights; Civil liberties; Civil Rights Acts; Natural rights.

In a narrower signification, an interest or title in an object of property; a just and legal claim to hold, use, or enjoy it, or to convey or donate it, as he may please.

A legally enforceable claim of one person against another, that the other shall do a given act, or shall not do a given act.  Restatement of the Law of Property, 1.

That which one person ought to have or receive from another, it being withheld from him, or not in his possession.  In this sense "right" has the force of possession.  In this sense "right" has the force of "claim," and is properly expressed by the Latin "jus."

See also Conditional right; Correlative rights; Droit; Jus; Justice; Natural rights; Power; Recht; Vested rights.

General Classification

Rights may be described as perfect or imperfect, according as their action or scope is clear, settled, and determinate, or is vague and unfixed.

Rights are also either in personam or in rem.  A right in personam is one which imposes an obligation on a definite person.  A right in rem  is one which imposes an obligation on persons generally; i.e.,  either on all the world or on all the world except certain determinate persons.  Thus, if I am entitled to exclude all persons from a given piece of land; and, if there are one or more persons, A., B., and C., whom I am not entitled to exclude from it, my right is still a right in rem.

Rights may also be described as either primary or secondary.  Primary rights are those which can be created without reference to rights already existing.  Secondary rights can only arise for the purpose of protecting or enforcing primary rights.  They are either preventive (protective) or remedial (reparative).

Preventive or protective secondary rights exist in order to prevent the infringement or loss of primary rights.  They are judicial when they require the assistance of a court of law for their enforcement, and extrajudicial when they are capable of being exercised by the party himself.  Remedial or reparative secondary rights are also either judicial or extrajudicial.  They may further be divided into (1) rights of restitution or restoration, which entitle the person injured to be replaced in his original position; (2) rights of enforcement, which entitle the person injured to the performance of an act by the person bound; and (3) rights of satisfaction or compensation.

With respect to the ownership of external objects of property, rights may be classed as absolute and qualified.  An absolute right gives to the person in whom it inheres the uncontrolled dominion over the object at all times and for all purposes.  A qualified right gives the possessor a right to the object for certain purposes or under certain circumstances only.  SUch is the right of a bailee to recover the article bailed when it has been unlawfully taken form him by a stranger.

Rights are also either legal or equitable.  The former is the case where the person seeking to enforce the right for his own benefit has the legal title and a remedy at law.  The latter are such as are enforceable only in equity; as, at the suit of cestui que trust.  Procedurally, under Rules of Civil Procedure, both legal and equitable rights are enforced in the same court under a single cause of action.

Constitutional Rights

There is also a classification of rights, with respect to the constitution of civil society.  Thus, according to Blackstone, "the rights of persons, considered in their natural capacities, are of two sorts, --absolute and relative;  absolute, which are such as appertain and belong to particular men, merely as individuals or single persons; relative, which are incident to them as members of society, and standing in various relations to each other."  1 Bl.Comm. 123.

Rights are also classified in constitutional law as natural, civil, and political, to which there is sometimes added the class of "personal rights."

Natural rights are those which grow out of the nature of man and depend upon personality, as distinguished from such as are created by law and depend upon civilized society; or they are those which are plainly assured by natural law; or those which, by fair deduction from the present physical, moral, social, and religious characteristics of man, he must be invested with, and which he ought to have realized for him in a jural society, in order to fulfill the ends to which his nature calls him.  Such are the rights of life, liberty, privacy, and good reputation.

Civil rights are such as belong to every citizen of the state or country, or, in a wider sense, to all its inhabitants, and are not connected with the organization or administration of government.  They include the rights of property, marriage, equal protection of the laws, freedom of contract, trial by jury, etc.  Or, as otherwise defined, civil rights are rights appertaining to a person by virtue of his citizenship in a state or community.  Such term may also refer, in its very general sense, to rights capable of being enforced or redressed in a civil action.  Also, a term applied to certain rights secured to citizens of the United States by the Thirteenth and Fourteenth amendments to the Constitution, and by various acts of Congress (e.g. Civil Rights Acts) made in pursuance thereof.  See Bill of Rights; Civil liberties; Civil Rights Acts.

Political rights consist in the power to participate directly or indirectly, in the establishment or administration of government, such as the right of citizenship, that of suffrage, the right to hold public office, and the right of petition.

Personal rights is a term of rather vague import, but generally it may be said to mean the right of personal security, comprising those of life, limb, body, health, reputation, and the right of personal liberty.

[Black's Law Dictionary, Sixth Edition, pp. 1323-1324]


Black’s Law Dictionary, Fourth Edition, p. 22-23

ABSOLUTE. Complete; perfect; final; without any condition or incumbrance; as an absolute bond (simplex oblignlio) in distinction from a conditional bond. Unconditional; complete and perfect in itself; without relation to or dependence on other things or persons. Instruction as to an "absolute" gift, Ketch v. Smith, 131 Okl. 263, 268 P. 715, 717. Irrevocable, final. Gift inter vivos by husband, President and Directors of Manhat. tan Co. v. Janowitz, 14 N.Y.S.2d 375, 382, 172 Misc. 290. Within limitation or restriction, Comford v. Cantrell, 177 Tenn. 553, 151 S.W.2d 1076, 1077.

An absolute estate is one that is free from all manner of condition or incumbrance; an estate in fee simple. John son v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681; Fuller v. Missroon, 35 S.C. 314, 1-1 S.E. 714: Bradford v. Martin, 199 Iowa 250, 201 N.W. 57.1, 576; Middleton v. Dudding, Mo. Sup., 183 S.W. 443, 444. A rule is said to be absolute when on the hearing it is confirmed and made final. A convey ancc is said to be absolute, as distinguished from a mort gage or other conditional conveyance. Gogarn v. ConnorS. 153 N.W. 1068, 188 Mich. 161. Absolute property is where a man hath solely and exclusively the right and also the occupation of movable chattels: distinguished from a qualified property, as that of a baiiee. 2 Kent 347. An absolute owner is one in whom elements of titles of possession. right of pcssession, and right of property, are comhined. Harris v. Southeast Portland Lumber Co., 123 Or. 549, 262 P. 213. 241. Absolute ownership exists when interest is so completely vested in insured that he cannot be deprived of it without his own consent. Norwicii Union Fire Ins. Soc. v. Sawyer, 57 Ga.App. 739, 196 S.E. 223. 224. 'Absolute rights are such as appertain and belong to particular persons merely as individuals or single persons, as distin guished from relative rights, which are incident to them as members of society; 1 Sharsw.Bin.Com. 123; 1 Chit.Pr. 32. An absolute duty is one that is free from every restriction ; unconditional; determined ; not merely provisional ; irrevocable. Broken telephone wires. Home Telephone Co. v. Weir. 101 N.E.1020, 1021, 53 1nd.App. 466: Railroad employee. Lehigh Valley R. Co. v. Beitz, C.C.A.N.Y., 10 F.2d 74, 77: Pedestrians. Scibilia v. City of Philadelphia. 279 Pa. 549, 124 A. 273, 275, 32 A.L.R. 981. An "absolute power of disposition," in the absence of statute, would be one by which the holder of the power might dispose of the property as fully and in the same manner as he might dis pose of his individual estate acquired by hls own efforts. In re Briggs' Will, 167 N.Y.S. 632, 635. 101 Misc. 191. In the law of insurance that is an absolute illterest in property which is so completely vested in the individual that there could be no danger of his being deprived of it without his own consent. Libby Lumber Co. v. Pacific States Fire Ins. Co., 79 Mont. 166, 255 P. 340, 345, 60 A.L.R. 1. It may be used in the sense of vested. Hough v. Ins. Co., 29 Corm. 20, 76 Am.Dec. 581. l'Absolute control" in Motor Vehicle Act does not require instant stoppage. Gaff v. Clarksburg Dairy Co., 86 W.Va. 237, 103 S.E. 58, 60. As to absolute control of a mine, see People v. Boggess. 75 Cal.App. 499, 243 P. 478. 481; and of an estate. see Strickland v. Strick land. 271 Ill. 614, 111 N.E. 592, 594. Absolute veto is equiv alent to "pocket veto". Okanogan, Methow. San Poeiis (or San Pail), Nespelem, Colville, and Lake Indian Tribes or Bands of State of Washington v. United States, 49 S.Ct. 463, 279 U.S. 655, 73 L.Ed. 894, 64 A.L.R. 1434. As to absolute "Conveyance," "Covenant,;; "Delivery," "Divorce:;' "Estate,':, "Gift," "Guaranty. "Interest," "Legacy, "Nuisance, "Nullity," "Obligation," "Proper ty," "Rights," "Rule," "Sale," "Title," "Warrandice," see those titles.

[Black’s Law Dictionary, Fourth Edition, p. 22-23]


Black’s Law Dictionary, Fourth Edition, p. 1406

QUALIFIED. Adapted; fitted; entitled; susceptible; capable; competent; fitting; possessing legal power or capacity; eligible; as an elector to vote. Applied to one who has taken the steps to prepare himself for an appointment or office, as by taking oath, giving bond, etc. Gibbany v. Ford, 29 N.M. 621; 225 P. 577,578; Board of Com'rs of Guadalupe County v. District Court of Fourth Judicial' Dist., 29 N.M. 244, 223 P. 516, 522. Also limited; restricted; confined; modified; imperfect, or temporary.

The term is also applied in England to a person who is enabled to hold two benefices at once.

[Black’s Law Dictionary, Fourth Edition, p. 1406]


Black’s Law Dictionary, Fourth Edition, p. 299-300

CHATTEL. An article of personal property; any species of property not amounting to a freehold or fee in land. People v. Holbrook, 13 Johns., N.Y., 94; U. S. v. Sischo, C.C.A.Wash., 270 F. 958, 961. A thing personal and movable. Castle v. Castle, C.C.A.Haw., 267 F. 521, 522. Things which in law are deemed personal property, they are divisible into chattels real and chattels personal.

The term "chattels" is a more comprehensive one than "goods." as it includes animate as well as inanimate property. 2 Chit.Bl.Comm. 383, note. In a devise, however. they may be of the same import. Shep.Touch. 447; 2 Fonbl. Eq. 335.

Chattel Interest

An interest in corporeal hereditaments less than a freehold. 2 Kent, Comm. 342.

Personal Chattels

Movable things. 2 B1.Comm. 387; 2 Kent, 340; Co.Litt. 4Sn; 4 Co. 6; In re Gay, 5 Mass. 419; Miller v. IIirschmann, 170 Md. 145, 183 A. 259, 263. Evidences of debt are chattels personal. Greene Llne Terminal Co. v. Martin, 122 W.Va. 453, 10 S.E.2d 901, 906.

Real Chattels

Such as concern, or savor of, the realty, such as leasehold estates; interests issuing out of, or annexed to, real estate; such chattel interests as devolve after the manner of realty. Mozley& Whitley; 2 B1.Comm. 386; In re Dalton's Estate, 183 Iowa, 1013, 168 N.W. 332, 334; Intermountain Realty Co. v. Allen, 60 Idaho 228, 90 P.2d 704, 706, 122 A.L.R. 647; Keystone Pipe & Supply Co. v. Crabtree, 174 Okl. 562, 50 P.2d 1086, 1088. An interest in real estate less than freehold, Lincoln Nat. Bank & Trust Co. of Fort Wayne v. Nathan, 215 Ind. 178, 19 N.E.2d 243, 249.

[Black’s Law Dictionary, Fourth Edition, p. 299-300]


Black’s Law Dictionary, Fourth Edition, pp. 402-403

CONVEYANCE. In pleading. Introduction or inducement.

In real property law. In the strict legal sense, a transfer of legal title to land. In the popular sense, and as generally used by lawyers, it de notes any transfer of title, legal or equitable. Chupco v. Chapman, 76 Okl. 201, 170 P. 259, 266. The transfer of the title of land from one person or class of persons to another. Klein v. McNam ara, 54 Miss. 105; Alexander v. State, 28 Tex. App. 186, 12 S.W. 595; In re Loes' Will, 55 N.Y.S. 2d 723, 726. An instrument in writing under seal, (anciently termed an "assurance,") by which some estate or interest in lands is transferred from one person to another; such as a deed, mortgage, etc. 2 B1. Comm. 293, 295, 309.

Conveyance includes every instrument in writing by which any estate or interest in real estate 1s created. aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity, except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale or pu; chase of lands. Stearns Lighting & Power Co. v. Central Trust Co., C.C.A.Mich., 223 F. 962, 966; Shraiberg v. Hanson, 138 Minn. 80, 163 N.W. 1032, 1033.

General

Absolute or conditional conveyance. An absolute conveyance is one by which the right or property in a thing is transferred, free of any condition or qualification, by which it might be defeated or changed; as an ordinary deed of lands, in con tradistinction to a mortgage, which is a conditional conveyance. Burrill; Falconer v. Buffalo, etc., R. Co., 69 N.Y. 91; Brown v. United States, C.C.A.Pa., 95 Fed.2d 487, 489.

Fraudulent conveyance. See Fraudulent.

Mesne conveyance. An intermediate convey ance; one occupying an intermediate position in a chain of title between the first grantee and the present holder.

Primary conveyances. Those by means where of the benefit or estate is created or first arises; as distinguished from those whereby it may be en larged, restrained, transferred, or extinguished. The term includes feoffment, gift, grant, lease, exchange, and partition, and is opposed to deriva tive conveyances, such as release, surrender, confirmation, etc. 2 B1. Comm. 309.

Secondary conveyances. The name given to that class of conveyances which presuppose some other conveyance precedent, and only serve to en large, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance. 2 B1. Comm. 324. Otherwise termed "derivative conveyances" (q. v.).

Voluntary conveyance. A conveyance without valuable consideration; such as a deed or settle ment in favor of a wife or children. Gentry v. Field, 143 Mo. 399, 45 S.W. 286; Shannon v. Duf field, 218 Ky. 770, 292 S.W. 322, 323; English v. Brown, D.C.N.J., 219 F. 248, 256.

[Black’s Law Dictionary, Fourth Edition, pp. 402-403]


Black’s Law Dictionary, Fourth Edition, pp. 1361-1362

GRANT. To bestow; to confer, Traylor v. State, 117 Tex.Cr.R. 323, 36 S.W.2d 506, 507; upon some one other than the person or entity which makes the grant. Porto Rico Ry., Light & Power Co. v. Colom, C.C.A.Puerto Rico, 106 F.2d 345. 354.

Deed. Walker v. Deppe, 346 Mo. 354, 141 S.W. 2d 783, 785. A conveyance. Dearing v. Brush Creek Coal Co., 182 Tenn. 302, 186 S.W.2d 329, 331. Transfer of property real or personal by deed or writing. Commissioner of Internal Revenue v. Plestcheeff, C.C.A.9, 100 F.2d 62, 64, 65.

A generic term applicable to all transfers of real property, 3 Washb. Real Prop. 181, 353; including transfers by operation of law as well as voluntary transfers. White v. Rosenthal, 140 Cal. App. 184, 35 P.2d 154,155.

A transfer by deed of that which cannot be passed by livery. Williams, Real Prop. 147, 149; Jordan v. Indianapolis Water Co., 159 Ind. 337, 64 N.E. 680.

An act evidenced by letters patent under the great seal, granting something from the king to a subject. Cruise, Dig. tit. 33, 34; Downs v. United States, C.C.A.Md., 113 F. 147, 51 C.C.A. 100.

A technical term made use of in deeds of conveyance of lands to import a transfer. 3 Washb. Real Prop. 378-380.

As dlstingulshed from a mere license, a grant passes some estate or Interest, corporeal or lncorporeal. in the lands wlilch it embraces. Jamieson v. Mlllemann. 3 Duer. N.Y., 255. 258.

The term "grant." In Scotland, Is used in reference (1) to original dispositions of land, as when a lord makes grants of land among tenants: (2) to gratultous deeds. Paterson. In such case, the superlor or donor is sald to grant the deed; an expression totally unknown In English law. Mozley 8 Whltley.

By the word "grant," in a treaty, is meant not only a formal grant, but any concession, warrant, order, or permission to survey, possess, or settle, whether written or parol, express, or presumed from possession. Such a grant may be made by law, as well as by a patent pursuant to a law. Strother v. Lucas. 12 Pet. 436, 9 L.Ed. 1137: Bryan v. Kennett, 113 U.S. 179, 5 S.Ct. 413, 28 L.Ed. 908; Hastlngs v. Turnpike Co., 9 Pick., Mass., 80; Dudley v. Sumner, 5 Mass. 470.

For ofice grant, see Office.

Private land grant. A grant by a public authority vesting title to public land in a private (natural) person. United Land Ass'n v. Knight, 85 Cal. 448, 24 P. 818.

Public grant. A grant from the public; a grant of a power, license, privilege, or property, from the state or government to one or more individuals, contained in or shown by a record, conveyance, patent, charter, etc..

[Black’s Law Dictionary, Fourth Edition, pp. 1361-1362]


Black’s Law Dictionary, Fourth Edition, p. 178

BAILEE. In the law of contracts. One to whom goods are bailed; the party to whom personal property is delivered under a contract of bailment. Hotels Statler Co. v. Safier, 103 Ohio St. 638, 134 N.E. 460, 462, 22 A.L.R. 1190. A species of agent to whom something movable is committed in trust for another. Cowart v. State, 16 Ala.App. 119, 75 So. 711, 713; Smith v. State, 78 0kl.Cr. 375, 148 P.2d 206, 208.

[Black’s Law Dictionary, Fourth Edition, p. 178]


Black’s Law Dictionary, Fourth Edition, p. 1669

TRANSFER, a. An act of the parties, or of the law, by which the title to property is conveyed from one person to another. Innerarity v. Mims, 1 Ala. 669; Sands v. Hill, 55 N.Y. 18; Wallach v. Stein, 136 A. 209, 210, 103 N.J.L. 470; O'Hagan v. Kracke, 165 Misc. 4, 300 N.Y.S. 351, 361. Alienation; conveyance. 2 BLComm. 294.

[Black’s Law Dictionary, Fourth Edition, p. 1669]


Black’s Law Dictionary, Fourth Edition, p. 1669

TRANSFEREE. He to whom a transfer is made. Kramer v. Spradlin, 148 Ga. 805, 98 S.E. 487, 488.

[Black’s Law Dictionary, Fourth Edition, p. 1669]


Black’s Law Dictionary, Fourth Edition, p. 1669

TRANSFEROR. One who makes a transfer.

[Black’s Law Dictionary, Fourth Edition, p. 1669]


Black’s Law Dictionary, Fourth Edition, pp. 1325-1326

POSSESSION. The detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one's use and enjoyment, either as owner ur as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. Act or state of possessing. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. Starits v. Avery, 204 Iowa 401, 213 N.W. 769, 771; Schenk v. State, 106 Tex.Cr.R. 564, 293 S.W. 1101, 1102; State v. Compton, Mo.App., 297 S.W. 413, 414; Nevin v. Louisville Trust Co., 258 Ky. 187, 79 S.W.2d 688, 689.

In the older books, "possession" Is sometimes used as the synonym of "seisin;" but, strictly speaking, they are entirely- different terms. "The difference between posses- sion and seisin is: Lessee for years is possessed, and yet the lessor ls stlll seised; and therefore the terms of law are that of chattels a man is possessed, whereas In feofments, gifts in tail, and leases for life he is described as 'seised. "' Noy.Max. 64.

"Possession" Is used in some of the books In the sense of property. "A possession is an hereditament or chattel". Finch,Law, b. 2, c. 3.

Possession of liquor which Is made unlawful Is possession under some claim of right, control, or dominion, with knowledge of facts. Schwartz v. State, 192 Wis. 414, 212 N.W. 664, 665. Taking a drink of Intoxicating liquor on invitation of owner thereof does not constitute criminal "possession." Colbaugh v. U. S.. C.C.A.Ok1.. 15 F.2d 929, 931: State v. Williams. 117 Or. 238. 243 P. 563; Sizemore v. Commonwealth, 202 Ky. 273, 259 S.W. 337, 342; Brazeale v. State. 133 Miss. 171. 97 So. 525. 526: Harness v. State, 130 Miss. 673, 95 So.64; State v. McAllister, 187 N.C. 400, 121 S.E. 739, 740; People v. Leslie, 239 Mich. 334, 214 N.W. 128.

Actual possession. Exists where the thing is in the immediate occupancy of the party. Simpson v. Blount, 14 N.C. 34; Field Furniture Co. v. Community Loan Co., 257 Ky. 825, 79 S.W.2d 211, 215.

Adverse possession. The actual, open, and no. torious possession and enjoyment of real property, or of any estate lying in grant, continued for a certain length of time, held adversely and in de- nial and opposition to the title of another claim- ant, or under circumstances which indicate an as- sertion or color of right or title on the part of the person maintaining it, as against another person who is out of possession. Hall v. Lavat, 301 Mo. 675, 257 S.W. 108, 111; W. T. Carter & Bro. v. Richardson, Tex.Civ.App., 225 S.W. 816, 817; Bax- ter v. Girard Trust Co., 288 Pa. 256,135 A. 620, 621, 49 A.L.R. 1011; Mendel v. Poland, 200 Mich. 571, 166 N.W. 910, 912.

Chose in possession. A thing (subject of personal property) in actual possession, as distin- guished from a "chose in action," which is not presently in the owner's possession, but which he has a right to demand, receive, or recover by suit.

Civil possession. In modern civil law and in the law of Louisiana, that possession which exists when a person ceases to reside in a house or on the land which he occupied, or to detain the movable which he possessed, but without intend- ing to abandon the possession. It is the detention of a thing by virtue of a just title and under the conviction of possessing as owner. Civ.Code La. art. 3429 et seq. A fiction resulting from the reg- istry of the title of the original owner. Baldwin Lumber Co. v. Dalferes, 138 La. 507, 70 So. 493, 499; Maisonneuve v. Dalferes, 138 La. 527, 70 So. 500, 501.

Constructive possession. Possession not actual but assumed to exist, where one claims to hold by virtue of some title, without having the actual occupancy, as, where the owner of a tract of land, regularly laid out, is in possession of a part, he is constructively in possession of the whole. Fleming v. Maddox, 30 Iowa 241.

Corporeal possession. The continuing exercise of a claim to the exclusive use of a material thing. The elements of this possession are first, the men- tal attitude of the claimant, the intent to possess, to appropriate to oneself; and second, the effectjve realization of this attitude. All the authorities agree that an intent to exclude others must coexist with the external facts, and must be fulfilled in the external physical facts in order to constitute possession. State v. Wagoner, 123 Kan. 591,256 P. 957,958.

Derivative possession. The kind of possession of one who is in the lawful occupation or custody of the property, but not under a claim of title of his own, but under a right derived from another, as, for example, a tenant, bailee, licensee, etc.

Dispossession. The act of ousting or removing one from the possession of property previously held by him, which may be tortious and unlawful, as in the case of a forcible amotion, or in pursuance of law, as where a landlord "dispossesses" his tenant at the expiration of the term or for other cause by the aid of judicial process.

Estate in possession. An estate whereby a present interest passes to and resides in the tenant, not depending on any subsequent circum- stance or contingency. 2 B1.Comm. 163. An estate where the tenant is in actual pernancy, or receipt of the rents and other advantages arising therefrom. 2 Crabb, Real Prop. p. 958, 5 2322. Eberts v. Fisher, 44 Mich. 551, 7 N.W. 211; Sage v. Wheeler, 3 App.Div. 38, 37 N.Y.S. 1107.

Exclusive possession. See Exclusive Possession.

Hostile possession. This term, as applied to an occupant of real estate holding adversely, is not construed as implying actual enmity or ill will, but merely means that he claims to hold the possession in the character of an owner, and therefore denies all validity to claims set up by any and all other persons. Ballard v. Hansen, 33 Neb. 861, 51 N.W. 295; Mittet v. Hansen, 178 Wash. 541, 35 P.2d 93, 95.

Naked possession. The actual occupation of real estate, but without any apparent or colorable right to hold and continue such possession; spoken of as the lowest and most imperfect degree of title. 2 B1.Comm. 195; Birdwell v. Burleson, 31 Tex.Civ.App. 31,72 S.W. 446.

Natural possession. That by which a man de- tains a thing corporeally, as, by occupying a house, cultivating ground, or retaining a movable in possession; natural, possession is also defined to be the corporeal detention of a thing which we possess as belonging to us, without any title to that possession or with a title which is void. Civ. Code La. arts. 3428, 3430. Railroad Co. v. Le Ros- en, 52 La.Ann. 192, 26 So. 854.

Open possession. Possession of real property is said to be "open" when held without concealment or attempt at secrecy, or without being covered up in the name of a third person, or other- wise attempted to be withdrawn from sight, but in such a manner that any person interested can ascertain who is actually in possession by prop- er observation and inquiry. See Bass v. Pease, 79 I11.App. 315

Peaceable possession. See Peaceable.

Pedal possession. In establishing title by adverse possession this means actual possession; that is, living upon or actually occupying the land, or placing improvements directly upon it. Schaeffer v. Williams, Tex., 208 S.W. 220, 224.

Possession money. In English law. The man whom the sheriff puts in possession of goods taken under a writ of fieri facias is entitled, while he continues so in possession, to a certain sum of money per diem, which is thence termed "possession money." The amount is 3s. 6d. per day if he is boarded, or 5s. per day if he is not boarded. Brown.

Possesslon, writ of. Where the judgment in an action of ejectment is for the delivery of the land claimed, or its possession, this writ is used to put the plaintiff in possession. It is in the nature of execution.

Quasi possession. Is to a right what posses- sion is to a thing, it is the exercise or enjoyment of the right, not necessarily the continuous exercise, but such an exercise as shows an intention to exercise it at any time when desired. Sweet.

Scrambling possession. By this term is meant a struggle for possession on the land itself, not such a contest as is waged in the courts. or possession gained by an act of trespass, such as building a fence. Lobdell v. Keene, 85 Minn. 90, 88 N.W. 426.

Unity of possession. Joint possession of two rights by several titles, as where a lessee of land acquires the title in-fee-simple, which extinguishes the lease. The term also describes one of the es- sential properties of a joint estate, each of the ten- ants having the entire possession as well of every parcel as of the whole. 2 B1.Comm. 182.

Vacant possession. An estate which has been abandoned, vacated, or forsaken by the tenant. rhe abandonment must be complete in order to nake the possession vacant, and, therefore, if he tenant have goods on the premises it will not be so considered. 2 Chitty, Bail. 177; 2 Stra. 1064

[Black’s Law Dictionary, Fourth Edition, pp. 1325-1326]


Black’s Law Dictionary, Fourth Edition, pp. 1361-1362

PRIVITY. Mutual or successive relationship to the same rights of property. 1 GreenL.Ev. § 189; Duffy v. Blake, 91 Wash. 140, 157 P. 480, 482; Haverhill v. International Ry. Co., 217 App.Div. 521, 217 N.Y.S. 522, 523. Thus, the executor is in privity with the testator, the heir with the ancestor, the assignee with the assignor, the donee with the donor, and the lessee with the lessor. Litchfield v. Crane, 8 S.Ct. 210, 123 U.S. 549, 31 L.Ed. 199.

Derivative interest founded on, or growing out of, contract, connection, or bond of union between parties; mutuality of interest. Hodgson v. Midwest Oil Co., C.C.A.Wyo., 17 F.2d 71, 75.

Private knowledge; joint knowledge with another of a private concern; cognizance implying a consent or concurrence. Taylor v. Ferroman Properties, 103 Fla. 960, 139 So. 149, 150.

In a strict and technical sense a judgment creditor does not occupy such a relation to his debtor as to fall within the meaning of the word "privity," for there is no succession to the property of the debtor until a sale under execution is had and the judgment creditor has become vested with the title thereof. But a majority of the courts have  enlarged the meaning of the word, and consequently have held that there is privity between the two before there ls an actual devolution of the title of the property owned by the debtor. Buss v. Kemp Lumber Co., 23 N.M. 567, 170 P. 54, 56, L.R.A.l918C, 1015.

Privity of blood exists between an heir and his ancestor, (privity in blood inheritable,) and between coparceners. This privity was formerly of importance in the law of descent cast. Co. Litt. 271a, 242a; 2 Inst. 516; 8 Coke, 42b.

Privity of contract is that connection or relationship which exists between two or more contracting parties. It is essential to the maintenance of an action on any contract that there should subsist a privity between the plaintiff and defendant in respect of the matter sued on. Brown.

Privity of estate is that which exists between lessor and lessee, tenant for life and remainderman or reversioner, etc., and their respective assignees, and between joint tenants and coparceners. Privity of estate is required for a release by enlargement. Sweet.

[Black’s Law Dictionary, Fourth Edition, pp. 1361-1362]


51 Am Jur 2d Licenses and Permits § 2

51 Am Jur 2d Licenses and Permits § 2
§ 2 License as contract or property right

A license is not a contract between the sovereignty and the licensee and is not property in any constitutional sense. 1Link to the text of the noteHowever, a license is a revocable interest, 2Link to the text of the noteand thus, at least in the context of jurisdiction to revoke a license, the licensee maintains a property interest in a license prior to its revocation, 3Link to the text of the noteeven where the license is allowed to lapse. 4Link to the text of the note


Samuel Adams, The Massachusetts Circular Letter, February 11, 1768

“[It is an] essential, unalterable right in nature, engrafted into the British constitution as a fundamental law, and ever held sacred and irrevocable by the subjects within the realm, that what a man has honestly acquired is absolutely his own, which he may freely give, but cannot be taken from him without his consent.”

[Samuel Adams, The Massachusetts Circular Letter, February 11, 1768;
SOURCE: https://founders.archives.gov/documents/Adams/99-02-02-7094]


Budd v. People of State of New York, 143 U.S. 517 (1892)

   “Men are endowed by their Creator with certain unalienable rights,-'life, liberty, and the pursuit of happiness;' and to 'secure,' not grant or create, these rights, governments are instituted. That property [or income] which a man has honestly acquired he retains full control of, subject to these limitations:

    [1] First, that he shall not use it to his neighbor's injury, and   that does not mean that he must use it for his neighbor's benefit [e.g. SOCIAL SECURITY, Medicare, and every other public “benefit”];

    [2] second, that if he devotes it to a public use, he gives to the public a right to control that use; and

    [3] third, that whenever the public needs require, the public may take it upon payment of due compensation.

   [Budd v. People of State of New York, 143 U.S. 517 (1892) ]


American Jurisprudence 2d, United States, §45 (1999)

“A claim against the United States is a right to demand money from the United States. [1] Such claims are sometimes spoken of as gratuitous in that they cannot be enforced by suit without statutory consent. [2]    The general rule of non-liability of the United States  does not mean that a citizen cannot be protected against the wrongful governmental acts that affect the citizen or his or her property.[3] If, for example, money or property of an innocent person goes into the federal treasury by fraud to which a government agent was a party, the United States cannot [lawfully] hold the money or property against the claim of the injured party.[4] ”  [American Jurisprudence 2d, United States, §45 (1999)]

_____________________________________

[1] United States ex rel. Angarica v. Bayard,  127 U.S. 251,  32 L.Ed. 159,  8 S.Ct. 1156, 4 AFTR 4628 (holding that a claim against the Secretary of State for money awarded under a treaty is a claim against the United States); Hobbs v. McLean, 117 U.S. 567, 29 L.Ed. 940, 6 S.Ct. 870; Manning v. Leighton, 65 Vt. 84, 26 A 258, motion dismd 66 Vt. 56, 28 A 630 and (disapproved on other grounds by Button’s Estate v. Anderson, 112 Vt. 531, 28 A.2d. 404, 143 A.L.R. 195).

[2] Blagge v. Balch,  162 U.S. 439,  40 L.Ed. 1032,  16 S.Ct. 853.

[3] Wilson v. Shaw, 204 U.S. 24, 51 L.Ed. 351, 27 S.Ct. 233.

[4] Bull v. United States,  295 U.S. 247,  79 L.Ed. 1421,  55 S.Ct. 695, 35-1 USTC ¶ 9346, 15 AFTR 1069; United States v. State Bank,  96 U.S. 30, 96 Otto 30,  24 L.Ed. 647.


Gordon v. U. S., 227 Ct.Cl. 328, 649 F.2d. 837 (Ct.Cl., 1981)

“When the Government has illegally received money which is the property of an innocent citizen and when this money has gone into the Treasury of the United States, there arises an implied contract on the part of the Government to make restitution to the rightful owner under the Tucker Act and this court has jurisdiction to entertain the suit. 90 Ct.Cl. at 613, 31 F.Supp. at 769.” [Gordon v. U. S., 227 Ct.Cl. 328, 649 F.2d. 837 (Ct.Cl., 1981)]

California Civil Code, Section 2224

California Civil Code Section 2224

“One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.”


U.S. v. Kagama & Another, Indians, 118 U.S. 375 (1886)

"But these Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the government of the United States, or of the states of the Union. There exists within the broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies, with limited legislative functions, but they are all derived from, or exist in, subordination to one or the other of these. The territorial governments owe all their powers to the statutes of the United States conferring on them the powers which they exercise, and which are liable to be withdrawn, modified, or repealed at any time [118 U.S. 375, 380] by congress. What authority the state governments may have to enact criminal laws for the Indians will be presently considered. But this power of congress to organize territorial governments, and make laws for their inhabitants, arises, not so much from the clause in the constitution in regard to disposing of and making rules and regulations concerning the territory and other property of the United States, as from the ownership of the country in which the territories are, and the right of exclusive sovereignty which must exist in the national government, and can be found nowhere else." Murphy v. Ramsey, 114 U.S. 44 ; S. C. 5 Sup. Ct. Rep. 747.

[U.S. v. Kagama & Another, Indians, 118 U.S. 375 (1886)]


Bull v. United States, 295 U.S. 247, 261, 55 S.Ct. 695, 700, 79 L.Ed. 1421

“The United States, we have held, cannot, as against the claim of an innocent party, hold his money which has gone into its treasury by means of the fraud of its agent. While here the money was taken through mistake without element of fraud, the unjust retention is immoral and amounts in law to a fraud of the taxpayer's rights. What was said in the State Bank Case applies with equal force to this situation. ‘An action will lie whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obligated by natural justice and equity to refund. The form of the indebtedness or the mode in which it was incurred is immaterial.

[Bull v. United States, 295 U.S. 247, 261, 55 S.Ct. 695, 700, 79 L.Ed. 1421]


Armstrong v. United States, 364 US 40 (1960)

III.

The final question is whether the Government's action constituted a "taking" of petitioners' property interests within the meaning of the Fifth Amendment. Before the United States compelled Rice to transfer the hulls and all materials held for future use in building the boats, petitioners had valid liens under Maine law against both the hulls and whatever unused materials which petitioners had furnished. Before transfer these liens were enforceable by attachment against both the hulls and all materials. After transfer to the United States the liens were still valid, United States v. Alabama, 313 U. S. 274, 281-282, but they could not be enforced because of the sovereign immunity of the Government and its property from suit.[4]The result of this was a destruction of all petitioners' property rights under their liens, although, as we have pointed out, the liens were valid and had compensable value. Petitioners contend that destruction of 47*47 their liens under the circumstances here is a "taking." The United States denies this, largely on the premise that inability of petitioners to enforce their liens because of immunity of the Government and its property from suit cannot amount to a "taking."

The Government argues that the Ansonia case is dispositive of this Fifth Amendment issue. In that case, the contract between the shipbuilder and the United States provided, as to one of the ships contracted for, the dredge Benyuard, that as progress payments were made, the portion of the work paid for should become the property of the United States. Subcontractors claimed liens on the uncompleted vessel under the Virginia supply-lien law. This Court merely held that, as the property had passed to the United States by virtue of the terms of the contract, no lien could be enforced against it. No question was raised as to the rights possessed by the subcontractors prior to the acquisition of title by the United States nor as to whether that event entitled them to just compensation under the Fifth Amendment. There is, to be sure, reason to believe that the subcontractors' liens in that case, like those of petitioners here, did attach as soon as materials were furnished, which would necessarily be prior to the making of a progress payment for the portion of the work incorporating those materials and the consequent passage of title to the United States. See Hawes & Co. v. Trigg Co.,110 Va. 165, 185-186, 199, 65 S. E. 538, 546-547, 551-552. But the Fifth Amendment question was not raised or passed upon. In these circumstances we cannot regard the court's decision as dispositive on the precise point now under consideration, and must proceed to decide that question.[5]

48*48 We hold that there was a taking of these liens for which just compensation is due under the Fifth Amendment. It is true that not every destruction or injury to property by governmental action has been held to be a "taking" in the constitutional sense. Omnia Commercial Co. v. United States, 261 U. S. 502, 508-510. This case and many others reveal the difficulty of trying to draw the line between what destructions of property by lawful governmental actions are compensable "takings" and what destructions are "consequential" and therefore not compensable. See, e. g., United States v. Central Eureka Mining Co., 357 U. S. 155United States v. Causby, 328 U. S. 256United States v. General Motors Corp., 323 U. S. 373United States v. Sponenbarger, 308 U. S. 256Pennsylvania Coal Co. v. Mahon, 260 U. S. 393Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467Legal Tender Cases, 12 Wall. 457, 551.

The total destruction by the Government of all value of these liens, which constitute compensable property, has every possible element of a Fifth Amendment "taking" and is not a mere "consequential incidence" of a valid regulatory measure. Before the liens were destroyed, the lienholders admittedly had compensable property. Immediately afterwards, they had none. This was not because their property vanished into thin air. It was because the Government for its own advantage destroyed the value of the liens, something that the Government could do because its property was not subject to suit, but which no private purchaser could have done. Since this acquisition was for a public use, however accomplished, whether with an intent and purpose of extinguishing the liens or not, the Government's action did destroy them 49*49 and in the circumstances of this case did thereby take the property value of those liens within the meaning of the Fifth Amendment. Neither the boats' immunity, after being acquired by the Government, from enforcement of the liens nor the use of a contract to take title relieves the Government from its constitutional obligation to pay just compensation for the value of the liens the petitioners lost and of which loss the Government was the direct, positive beneficiary.

The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. A fair interpretation of this constitutional protection entitles these lienholders to just compensation here. Cf. Thibodo v. United States, 187 F. 2d 249.

The judgment is reversed and the cause is remanded to the Court of Claims for further proceedings to determine the value of the property taken.

Reversed and remanded.

[Armstrong v. United States, 364 US 40 (1960)]

[This is a HUGELY important ruling, because it says that the govermment implicitly waives sovereign immunity when it takes your property of any kind, including for tax collection]


Nollan v. California Coastal Comm'n, 483 U.S. 825  (1987)

“We have repeatedly held that, as to property reserved by its owner for private use, "the right to exclude [others is] `one of the most essential sticks in the bundle of rights that are commonly characterized as property.' " Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982), quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). “

[Nollan v. California Coastal Comm'n, 483 U.S. 825  (1987)]


Kaiser Aetna v. United States, 444 U.S. 164 (1979)

“In this case, we hold that the "right to exclude," so universally held to be a fundamental element of the property right,[11] falls within this category of interests that the Government cannot take without compensation.

[Kaiser Aetna v. United States, 444 U.S. 164 (1979)]

_____________________

FOOTNOTE:

[11] See, e. g., United States v. Pueblo of San Ildefonso, 206 Ct.Cl. 649, 669-670, 513 F.2d. 1383, 1394 (1975); United States v. Lutz,295 F.2d. 736, 740 (CA5 1961). As stated by Mr. Justice Brandeis, "[a]n essential element of individual property is the legal right to exclude others from enjoying it." International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (dissenting opinion).


Readings on the History and System of the Common Law, Second Edition, Rosco Poung, 1925, p. 543

“How, then, are purely equitable obligations created? For the most part, either by the acts of third persons or by equity alone. But how can one person impose an obligation upon another? By giving property to the latter on the terms of his assuming an obligation in respect to it. At law there are only two means by which the object of the donor could be at all accomplished, consistently with the entire ownership of the property passing to the donee, namely: first, by imposing a real obligation upon the property; secondly, by subjecting the title of the donee to a condition subsequent. The first of these the law does not permit; the second is entirely inadequate. Equity, however, can secure most of the objects of the doner, and yet avoid the mischiefs of real obligations by imposing upon the donee (and upon all persons to whom the property shall afterwards come without value or with notice) a personal obligation with respect to the property; and accordingly this is what equity does. It is in this way that all trusts are created, and all equitable charges made (i.e., equitable hypothecations or liens created) by testators in their wills. In this way, also, most trusts are created by acts inter vivos, except in those cases in which the trustee incurs a legal as well as an equitable obligation. In short, as property is the subject of every equitable obligation, so the owner of property is the only person whose act or acts can be the means of creating an obligation in respect to that property. Moreover, the owner of property can create an obligation in respect to it in only two ways: first, by incurring the obligation himself, in which case he commonly also incurs a legal obligation; secondly, by imposing the obligation upon some third person; and this he does in the way just explained.”
[Readings on the History and System of the Common Law, Second Edition, Roscoe Pound, 1925, p. 543]


Bouvier’s Maxims of Law, 1856

Quando duo juro concurrunt in und personâ, aequum est ac si essent in diversis. When two rights [public right v. private right] concur in one person, it is the same as if they were two separate persons. 4 Co. 118.

[Bouvier’s Maxims of Law, 1856; SOURCE:  http://famguardian.org/Publications/BouvierMaximsOfLaw/BouviersMaxims.htm]


Bouvier’s Maxims of Law, 1856

“Quod meum est sine me auferri non potest.
What is mine cannot be taken away without my consent. Jenk. Cent. 251. Sed vide Eminent Domain.

Id quod nostrum est, sine facto nostro ad alium transferi non potest.
What belongs to us cannot be transferred to another without our consent. Dig. 50, 17, 11. But this must be understood with this qualification, that the government may take property for public use, paying the owner its value. The title to property may also be acquired, with the consent of the owner, by a judgment of a competent tribunal.”

[Bouvier’s Maxims of Law, 1856; SOURCE:  http://famguardian.org/Publications/BouvierMaximsOfLaw/BouviersMaxims.htm]