74.
description"[1]. They can be "awkward and incongruous"[2]. In the United States, where the "bundle of rights" metaphor may have originated[3], it has been said that its conflation of use interests with legal interests, commonly "sticks" in the bundle or sources of "power", is a reason that the application of the approach "winds up being wrong in practice"[4].
204 A "right to use" a chattel is generally treated as one of the different "sticks" in the "bundle of rights" or as an aspect of the power derived from a "concentration of patiently garnered rights"[5]. But a "right to use" a chattel usually means only a liberty to use it[6] and a mere liberty to use a chattel is neither necessary[7] nor sufficient[8] for a property right. The misleading language of a "right to use" can also lead to the error of thinking that property rights arise only by lawful conduct. But even a thief can obtain a property right to exclude all others except those with a better right if the thief has physical control of the chattel and the intent to exercise that control on their own behalf to exclude others[9]. A clear understanding of a
- ↑ Yanner v Eaton (1999) 201 CLR 351 at 366 [17].
- ↑ JT International SA v The Commonwealth (2012) 250 CLR 1 at 107 [300].
- ↑ See Lewis, A Treatise on the Law of Eminent Domain in the United States (1888) at 43.
- ↑ Smith, "Property Is Not Just a Bundle of Rights" (2011) 8 Econ Journal Watch 279 at 284.
- ↑ Honoré, "Ownership", in Guest (ed), Oxford Essays in Jurisprudence (1961) 107 at 113, 116.
- ↑ Allen v Flood [1898] AC 1 at 29. See Douglas and McFarlane, "Defining Property Rights", in Penner and Smith (eds), Philosophical Foundations of Property Law (2013) 219 at 220–221, 226–227.
- ↑ Douglas and McFarlane, "Defining Property Rights", in Penner and Smith (eds), Philosophical Foundations of Property Law (2013) 219 at 233–234, discussing Yearworth v North Bristol NHS Trust [2010] QB 1.
- ↑ Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785 at 809, quoted in R G and T J Anderson Pty Ltd v Chamberlain John Deere Pty Ltd (1988) 15 NSWLR 363 at 368–369. See also Sport Internationaal Bussum BV v Inter-Footwear Ltd [1984] 1 WLR 776 at 794; [1984] 2 All ER 321 at 325.
- ↑ Buckley v Gross (1863) 3 B & S 566 at 574 [122 ER 213 at 216]; Field v Sullivan [1923] VLR 70 at 84; Costello v Chief Constable of Derbyshire Constabulary [2001] 1 WLR 1437 at 1446 [22]; [2001] 3 All ER 150 at 159; McMillan Properties Pty
