Property - follow-up and sources

["Craig Wright" <cwright () bdosyd com au>]

Hello,
First a reminder:
A property right at common law comprises a bundle of rights including:
        a right to possession;
        a right to alienate; and
        a right of economic exploitation.

At common law, dispossession of personal property can occur in three
ways:
(a)     Trespass being wrongful appropriation of possession
(b)     Detinue being an acquisition of rightful possession but wrongful
retention
(c)     Trover (or Conversion) being neither wrongful appropriation nor
retention, but wrongful disposition through destruction or sale.

Trespass is the wrongful interference with other persons or with their
possession of goods or land. To constitute a trespass the interference
must be unauthorised, direct and done voluntarily. Trespass to goods is
not committed unless there is a direct connection between the
trespasser's actions and some physical interference with another's
possession.
Directness is critical to trespass to goods. For example if you left
your goods in the library whilst you went for coffee and the library
doors were locked when you returned, this would interfere with your
possession of those things. However, the locking of the doors would not
be sufficiently direct for there to be trespass.
See the prior email, but when notification has occurred, such as sending
an ICMP type 3/9; continued scanning (i.e. port scans over multiple
ports) is thus a trespass. [read the first email/post if this is not as
yet clear].
To be direct, you need to do the scan. You have not completed a scan if
you have arranged another to do this for you. A web site that offers
free scans would be an example. Using this, the site offering the scan
would be in the condition of trespass.

Detinue is a tort that involves goods the wrongful detention of goods
from a person with an immediate right to possession.  Detinue is a
continuing wrong (contrasted with conversion where there is a single
wrongful act).
To establish a claim in detinue the following elements must be
established:
(i)     there must be possession by the defendant;
(ii)    there must be continuing wrongful detention by the defendant;
and
(iii)   there must be a request or demand for the return of the goods by
the plaintiff.
In detinue the cause of action accrues at the date of wrongful refusal
to deliver up the goods, the rationale being that it allows an
opportunity for a person who innocently comes into possession of the
goods to return the goods to the rightful owner.
The measure of damages in detinue can be determined from General &
Financial Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 1 WLR 644.

Conversion is a tort that only applies to goods and not to land. It is
an unauthorised interference with another's possession or right to
possession.  The subject matter of a claim for conversion must comprise
tangible moveable property which is in, or capable of being in, the
possession of a person.   Intangible property cannot be converted.

Examples include wine bottles, motor cars, machinery and plant, yachts,
business papers, title deeds, mortgage documents, trees cut down and
carried away, servers, routers hardware in general and domestic animals.
Money can be converted if it is a specific tangible moveable object (a
set of specific and identified coins or banknotes) stolen from a bag or
wallet or drawer, but there is no conversion if money is currency (eg
borrowing a generic $100.00 and refusing to repay it).

A cheque is a negotiable instrument which creates intangible rights in
the drawer of the cheque. Does this mean that no action in conversion
lies? Courts have overcome this problem by treating documents that
evidence or embody those rights (i.e. the tangible paper) as the goods
which are converted. In this way the conversion of the goods (cheque,
insurance policy, and share certificate) is treated as the conversion of
money the documents represent.

In the tort of conversion a defendant must by intentional conduct and
without lawful justification deal with goods in a manner repugnant to a
plaintiff's possession (actual or constructive) or immediate right to
possession of those goods. Dixon J in Penfolds Wines v Elliot (1946) 74
CLR 204 stated (at 229):
the essence of a conversion is a dealing with a chattel in a manner
repugnant to the actual possession or the immediate right of possession
of the person who has the property or the special property in the
chattel.

The response to a property right is a general duty on other people not
to interfere with the "res" (thing).

Just to interject... A lawyer is somebody who can take a 20,000 word
paper and call it a brief...

Subsequent to the last port the following are sources in law for the
prior statements made in the more lengthy post:

Some cases to learn about property rights:
Armory v Delamirie (1722) 1 Str 506; 93 ER 664 (see Jus Tertii)
Jeffries v The Great Western Railway Company 119 ER 680
Young v Hitchins (1844) 6 QBD 606; 115 ER 228
South Staffordshire Water Co v Sharman (1896) 2 QB 44
Wrightson v McArthur & Hutchinson [1921] KB 207
Elmore v Stone 1 Taunt 458; 127 ER 912
McEwan v Smith 2 HLC 388; 9 ER 1109
The Law of Real Property (2nd ed, 1966) 304 cites Blackstone's
(Commentaries Book II, Ch 20, 295)
Cochrane v Moore (1890) 25 QBD 57
Motor Finance Corporation v Transport Brakes Ltd [1949] 1 KB 332
Newtons of Wembley Ltd v Williams [1965] 1 QB 560
Langmead v Thyer Rubber Co Limited [1947] SASR 29 at 39
Jeffcott v Andrews Motor Ltd [1960] NZLR 721
Coggs v Bernard (1703) 2 Ld Raym 909; 1 Sm LC 175

And International law
S Blay, R Piotrowicz and B M Tsamenyi (eds), Public International Law.
An Australian Perspective, Oxford UP, 1997
D J Harris, Cases and Materials on International Law, 5th ed. Sweet &
Maxwell, 2004
B R Opeskin and D R Rothwell (eds), International Law and Australian
Federalism, Melbourne UP, 1997
W A Schabas, Genocide in International Law, Cambridge UP, 2000

Malanczuk, chs 1, 2, 6 (pp 91-96, 100-104), 20 (pp 353-361)
 Statute of the International Court of Justice 1945, TS 993, Article
34(1) (Harris, p 1073)
Reparation for Injuries Suffered in the Service of the United Nations,
Advisory Opinion, ICJ Reports 1949, p 174 (Harris, p 132)
United States v Palestine Liberation Organisation (1988) 695 F Supp 1456
Abbasi Anor. v Secretary of State for Commonwealth and Foreign Affairs
[2002] EWCA Civ. 1598
International Military Tribunal (Nuremberg) 41 AJIL 172 (1947)
(Materials, p 1)
Orentlicher, Yugoslavia War Crimes Tribunal, ASIL Focus - No 1, 1993
(Materials, p 5)
Orentlicher, Venues for Prosecuting Saddam Hussein: The Legal Framework,
ASIL Insights, December 2003
UNSC Resolution 955 (1994): Statute of the International Tribunal for
Rwanda, 33 ILM 1598 (1994), Articles 1-8 (Materials, p 9); note by
Akhavan, 90 AJIL 501 (1996)
Prosecutor v. Kanyabashi, Decision on Jurisdiction Case No ICTR-96-15-T
(Materials, p 12); note by Morris, 92 AJIL 66 (1998)
 In re Flick Ann Digest 1947, Case No 122, p 266
 Alien Tort Claims Act 1789 (US)
Kadic v. Karadzic 70 F 3d 232 (1995); note by Posner, 90 AJIL 658 (1996)
Doe v. Unocal Corporation 963 F Supp 880 (1997) (Materials, p 13)
Presbyterian Church of Sudan v Talisman Energy Inc. 244 F Supp 2D 289
(2003)
Wiwa v Royal Dutch Petroleum Company 226 F3d 88 (2000) (Materials)
Sosa v Alvarez-Machain 124 S.Ct.2739 (2004)
Lodico, Y.C., "The Justification for Humanitarian Intervention: Will the
Continent Matter?" (Fall, 2001) 35(3) The International Lawyer 1027

Now if you have actually read this - off to law school...

Have I bored the C$%# out of everyone enough yet? Answered the questions
as to what sets property rights?

Regards
Craig

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