Property I Outline
I. Introduction to Fundamentals
· First Possession
o Acquisition by Discovery
§ Johnson v. M’Intosh: The rule is that whoever is FIRST IN TIME has title
§ However, the Indians were to be assimilated into our society and would benefit from Christianity/Civilization etc.
§ Utilitarian Views
· Property is viewed as an artifact [most common view today]
· This developed from the earlier natural rights theory
· The primary function of property under the utilitarian view is to promote the efficient use of resources
o Property laws can be changed as they fit the uses of society [Utilitarian Calculus]
· Demsetz: property rights develop in response to externalities and the need to internalize them
o Externalities: things that happen to an outside party when a person does a certain thing
o Internalization remedies that
§ Natural Right
· John Locke’s labor theory of Property
o A person’s labor gave the property some intrinsic value
o Since Indians had no cities, towns, etc. they had not given the land that Intrinsic value
o Acquisition by Capture
§ Corporeal Possession v. Non-corporeal
· Puffendorf argues that the possession must be physical
· Barbyrac argues the opposite
o Mortally wounding an animal deprives it some liberty and shows your intent
o If it is illegal to take an animal from a trap, then that means a trapped animal is possessed by the trapper so what is the difference?
§ Pierson v. Post
· The fox hunting case
· Chase ≠ Possession
§ Ghen v. Rich
· Whaling case
· Local custom creates an exception to the corporeal possession rule
o 2 things to consider
§ General acquiescence by the community
§ Application elsewhere
o In Ghen, the custom was accepted by the community and was unlikely to find application outside the whaling community
o This was not so in Pierson
§ Both cases considered public policy
§ Keeble v. Hickeringill: property owners are allowed to make lawful use of their property and those who hinder them in their trade are liable to an action
· Constructive possession of animals on your land
o Acquisition by Creation
§ Property in one’s Ideas and Expressions [Intellectual Property]
· INS v. AP
o News is quasi-property
o INS took the news that AP collected and
n to the migrant farm workers was essential to let them know about the help available
· To exclude the helpers is to deprive the farm workers of their rights
· Landowners do not have such dominion over people on their land
· Subsequent Possession
o Acquisition by Find
§ The finder of a lost object has superior title against all but the original owner
§ Lost or mislaid property does not divest the owner of title, however, abandonment does
§ Lost property is accidentally and involuntarily parted with
§ Mislaid property is intentionally placed somewhere but later forgotten
§ The distinction between lost and mislaid property lies in where the chattel is found.
§ Abandoned property is intentionally parted with. The owner gives up possession and title
· To claim such property, which is now unowned, you must have actual or constructive dominion and control over the thing and have intent to assert ownership over it.