Agriculture Law and Management


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Concept of Property

The course focuses on three basic legal concepts: property, torts and contracts. This chapter introduces the concept of property and serves as an underpinning of subsequent chapters that expand on the legal concept of property.

This is the first of several web pages that address the concept of property.

We often think of property as that tract of land, the automobile, our home, or our clothing. But when studying the concept of property law, we will focus on the legal rights associated with property (that is, the rights we have with respect to the item), rather than the item itself.


What is property and why does society have a concept like property?

  • Property is not the item; instead, it is the rights you have in the item. Although this idea may seem strange initially, it will become clear as the concept of property is studied.
  • Take away law (that is, enforceable rights), and you eliminate the concept of property.
  • Take away property rights and you have _____ (to complete this sentence, envision what it would be like if we had no laws or rules).
  • Property rights exist when you can tell the rest of the world: "keep off unless you have my permission, which I may grant or withhold."
    • North Dakota:  "The ownership of a thing shall mean the right of one or more persons to possess and use it to the exclusion of others [emphasis added]." N.D.C.C. §47-01-01.
    • Montana:  "The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this code, the thing of which there may be ownership is called property." M.C.A. 70-1-101
  • More than one person can hold legal/property rights in the same item, such as an automobile or tract of land; this will be discussed throughout this section of the course.
    • How does the idea that property "is not the item, but instead are legal rights" relate to the Constitutional requirement that society (through government) can 1) take your property only if you are compensated or 2) restrict your activities only if the government action is an exercise of police power? Another way to think about this question is "does the government have to take ALL my rights in a tract of land, for example, before I am entitled to be compensated, or will there be times when I am entitled to be compensated even though the government has taken only SOME of my rights in the land?" This question will arise several times throughout our studies.
  • Even though we may not be able to list all the "sticks in the bundle" of rights, all the rights or sticks have to be held by someone. Sometimes the challenge is figuring who owns which rights. For example, if a property right is not owned by an individual, it will likely be owned by society through a local, state or federal government.
    • "All property has an owner, whether that owner is the state and the property public or the owner an individual and the property private. The state may also hold property as a private proprietor."  M.C.A. 70-1-102.
  • A general rule is that individual rights or sticks can be transferred without having to transfer all the rights. For example, I might temporarily transfer to you the right to use my land to grow a crop (e.g., a lease) without transferring to you the right to construct a building on the land you are leasing from me. That is, l can choose which rights to transfer and which rights to retain. Another example, I can choose to transfer ownership of the surface rights of land to you but retain the mineral rights or interests.


Summary of Key Point

  • Property law does not focus on the item, but instead property law emphasizes the legal rights that one has with respect to the item.
  • There are a variety of property rights and "owning property " involves owning a collection or "bundle" of property rights. To help illustrate this abstract concept, a property right is often described as "one stick in the bundle of rights" and property ownership is described as "owning a bundle of property rights."
  • More than one person can own rights in a single item of property, such as, several persons can share ownership of a tract of land.


The next page considers the categories of property.

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