Property law in the U.S. has a rather schizophrenic personality, mostly due to how English/U.S. society has developed over the past 900 or so years. As with other subject you have studied this term, property law is fundamentally "Common Law." Unfortunately (personal opinion) it has also been the subject of extensive legislation during the past half-century, most of which is at the political/philosophical extreme from the basic rules.

When the Common Law started to develop, rights to occupy and use real property were of paramount concern and the majority of cases related to that, as was mentioned in the missive concerning the tort of trespass. During this time, many rules concerning the rights associated with occupancy and use of real property developed.

Much later (historically), persons other than the King was able to hold legal title to real property. This came about as the feudal system became weaker and more-modern relationships between the ruler and the ruled developed. At the time, obtaining title was very important to land users/occupiers, for obvious reasons. The only pattern that the courts had for developing the rules relating to common ownership of title was the previous ownership rights of the King. Thus, the starting point was that a land owner had the equivalent of a king's rights with respect to his or her small part of the Earth. The phrase "a man's home is his castle" was legally rather accurate. That rule concerning title also fit well with pre-existing rules concerning possession and use (see trespass discussion). Both sets of rules were (and are) unequivocal on the extent of the owner/possessor's unqualified and unlimited rights within his legal boundaries.

Since that was the beginning of common law real property rules, one should reasonably expect that the basic rules have not radically changed - and that expectation would be correct. Within the U.S., an owner's rights to land are the most extensive (at least as far as I know) in the world. This is a result of the basic common law rules and the philosophy/political theories which sustained the Revolution and political/social development until at least 1930. Based on writings of some political/legal/economic philosophers (e.g. Adam Smith, David Hume, etc.), the U.S. attitude was consistently that a landowner had exclusive and inherently unregulated right to do whatever she or he wanted to and on her or his land. In addition, "real property" rights extended vertically to the greatest possible limit ("from the center of the Earth to the Heavens above"). In most countries, mineral and other natural resources belong to the state (the people as a whole) rather than to the person who just accidentally happens to hold title to the surface area. Can you imagine the anger/anguish experienced by government officials and citizens in general when it was learned that the "worthless" land "given" to the Indians (principally in Oklahoma) was found to have large oil deposits?

During the past half-century, much has been done that limits a real property owner's rights. Most of those changes result from the liberal philosophy that the government has the power to, and should, protect citizens in general from potential injury, discomfort, or aesthetic assault by individuals. The vehicle for those limitations is legislation - federal, state and local. That legislation does not change the basic common law rules. However, it has added a multitude of restrictions and obligations - to the extent that in some places a landowner must get specific government approval before she can paint the outside of her house (e.g. "historic" districts in Fort Wayne) or get some private committee's specific approval detailed architectural plans before starting to build her house.

The starting point was zoning laws. They were/are a legislative extension of the tort of "nuisance" (which still exists). Zoning laws divide the covered area into many "zones" and specify what can and cannot be done in each. For example, one cannot build a factory in a residential zone, or a residence in an industrial zone. Obviously, that "protects" the "rights" of landowners in the various areas by preventing mutually incompatible activities from taking place in the same vicinity. Since zoning laws survived legal challenges, the legislators have gone much further with things like "comprehensive plans" (which are more vague and manipulable), and "endangered species [flora and fauna] acts", and "coastal zone management" acts, etc. While the basic common law rule of untrammeled freedom within one's boundaries still exist, it is so limited by zoning and other regulation that even the option to not cut the grass no longer exists in many places.

The only legal restriction on the extent of land-use regulation is in the U.S. Constitution, and that is rather vague. Both the Fifth Amendment (vis-á-vis federal government) and Fourteenth Amendment (vis-á-vis state/local government) prohibit governmental "taking" of property except for a "public use" and with just compensation. If the government action results in some physical encroachment, even so little as allowing the use of a few square inches to attach cable-TV cables, there is a "taking" which must be legally justifiable and for which compensation must be given. But, if the action is "only" regulation, there are significant questions about when legal restrictions amount to a "taking".

For many years, it seemed that there was really no limit to the extent of legislative restrictions. However, in the past 15 - 20 years, the Supreme Court has more-frequently recognized that there is a point where regulation has essentially the same practical effect as a physical appropriation. The line between constitutionally acceptable regulation and a regulatory "taking" is far from clear. If the regulation leaves the owner with some level of economic value, probably there is no "taking" unless that value is exceedingly small in relation to reasonable expectations of return on investment. If one purchases land when some things are possible, but before those things can be done, legislation is adopted that prevents those planned things, there probably is no taking for that reason alone. In short, the theory that one's home is her castle is still in there fighting, but it is subject to a significant handicap.

With respect to rules concerning how one can divide, subdivide, re-subdivide property, there are many fewer changes. The various rules discussed in the text concerning "estates" in real property, leaseholds, easements, means of passing title, etc., were developed by Common Law courts and have not changed much in the past 200 - 500 years. The major changes have been simplification. There used to be 8 or 10 (or more) different types of "fee" estates with slightly differing rights. The most some of those accomplish was to trap all but the exceedingly wary. Similarly, the language of deeds (warranty, special warranty, quit claim) has been simplified and standardized. One more restriction - most local zoning/planning rules require government permission before a single parcel can be divided into more than one smaller parcels. Nevertheless, one can still divide the ownership of property in many different ways. One might envision a diagram of possible divisions as a three-dimensional shape something like a cube of margarine/butter whose long axis extends without apparent end. The square end represents this particular instant in time. Looking at the square end, one can draw vertical divisions, labeling one (small) part "title," a larger part "possession," and an even larger part "use". Each of those parts can be held by one or more owners (at the same time). Similarly, one can divide the square end horizontally to represent physical areas, such as the surface, the subsurface, and above-the surface. Those parts can also be held by one or more owners and can be divided indefinitely. For example, in New York City there is at least on parcel of land divided: "Air rights" starting about 50 feet above the surface are owned by "Owner 1" which has a 40+ story office building and an "easement" to the surface for pillars that keep the building off the ground. "Owner 2" owns the surface, where there is an historic building, and most of the subsurface. "Owners 3 – 10 or 15" own some type of easement for things from subway tunnels to telephone wires to sewer lines. "Owner X" owns all rights to subsurface minerals.

The extension of the square surface through time is represented by the rest of the cube extending to infinity. That, too, can be divided between owners. One person may own current rights but those will terminate in the future when someone else takes over. Temporary rights include rental or lease (time-limited right to possession/use), "life estates," "future interests," etc. This is where the various "estates" come in. A "fee simple" (a/k/a "fee simple absolute") extends as far as the cube goes, with all legal rights going to the present owner's heirs or transferees, as he or she chooses.

The legal rights concerning personal property are really the same as rights to real property. But due to the nature of personal property, the rights may not be so obvious or often utilized. It is not particularly helpful to think of "fee simple absolute" title to a head of lettuce. Most personal property is destroyed (consumed) by use. But the rules are still there and sometimes used. Take, for example, a car controlled by a car-rental company such as Hertz. Title to the car is most likely held by a finance company which purchased the car. The car is then leased to Hertz for possession through its projected useful life. Hertz then sub-leases possession and use of the car for short periods to various customers. The customers can grant temporary use to others, such as the friend who drives it to the store to buy more potato chips. The temporarily-possessing customer can also grant temporary "license" to the persons she allows to ride in the car. One could legally do the same thing with head of lettuce or quart of milk, but it seems rather silly in practical application.

One significant distinction between real and personal property is evidence of legal rights. For real property there are rules requiring written documents evidencing rights of title ("deed"), possession ("lease"), and so on. With respect to most personal property there are no similar rules. (The exception is things that need documentary title, such as automobiles, larger boats, airplanes, etc., and that is really for tax purposes more than anything else.) For everything else, there is no documentary evidence. Look around and try to identify something for which you have a written document proving that you own that thing. At most, we get cash register receipts that show we purchased a particular type of thing ("1.23 lbs. bananas @ .49", "skirt", etc.), but not any specific thing. The exception to that may be larger things that have serial numbers, but if one looks carefully, very few of those receipts list the item's serial number.

Because of this lack of title documents, possession becomes very important. You may have heard the common phrase, "possession is 9/10ths of the law". Concerning title to personal property, that is true. We generally assume that someone who possesses a personal-property item owns it. We also generally assume that if someone who does not possess an item claims to own that item, he or she must prove that ownership (the possessor can rely on the presumption of ownership). The law makes the same assumptions.

This importance of possession is reflected in (and the reason for) legal rules concerning "lost," "mislaid," and "abandoned" property, the formality of "delivery" of gifts, and all the rules concerning "bailment". In all instances, the possession of a personal property item changes from one person to another, but what legal rights go with that change of possession are in question. For example, if one wants to have his or her diamond bracelet cleaned, one delivers possession to a jewelry cleaner. If one wants to give the same bracelet to her or his child as gift, one delivers possession to the child. The objective physical acts are the same, but the intent and legal rights transferred are vastly different.

When one considers "intangible" personal property, such as "intellectual property," things become even more problematic. With intellectual property, one might have a document stating (or giving) legal rights, such as a patent or copyright. But the document is not the property. Delivering "possession" of intangible property is difficult because one cannot physically possess an intangible item. Delivery or transfer can only be made by delivering some documentation. And now with Internet, etc., even documents have no physical existence - there is just a bunch of positive and negative charges in a magnetic material or light and dark spots on photosensitive material.

If one remembers the genesis of property law rules (13th Century), one can understand why it is sometimes difficult to apply those rules to modern types of property.