Property outline
Heading, Subheadings, highlighting important part of the exam….
1. A vs. B
2. Issue – Who owns BA?
3. A’s Argument
Here is the rule
Here are the elements of the rule, 1, 2, and 3
Here is how it applies
4. B’s Argument
Rule, elements, application: 1, 2 and 3
5. Prediction/Conclusion
I. Introduction
Property: Relationship between people and things (not the thing itself), abstraction. Property and law go together, without law there is no property, or right to ownership.
– Rights among people
– Rights between people and things
– Real property (realty) refers to land and improvements attached to land
– Personal property (personalty) all property besides real property (tangible/intangible)
– Law recognizes the right to exclude others, quintessential belief behind property (who gets the right to use or access)
o Types of rights: who uses it, comes on it, crosses it (slavery)
o Bundle of rights theory associated with ownership, can sell or lease those rights, can separate out the bundle
Possession: controlling or holding of personal property with or without ownership. 2 elements (MUST HAVE BOTH ELEMENTS):
1. An intent to possess on the part of the possessor
2. His or her actual controlling or holding of the property (control is key)
1st Possession (First in time): establishing a priority of rights based on the time of acquiring the right in question. All things being equal, the chronologically first possessor has the better title. Policy, how do we want society to act? Power verses order, efficiency.
Relativity of Title: idea that a person can have a relatively better title or right to possession than another, while having a right inferior to yet another person.
II. Acquisition of Property by Capture (origin of property rights)
Title to wild animals is initially acquired by taking possession of the wild animal.
Mere chasing of an animal, although in hot pursuit, does not give the pursuer a right to possession against another who captures it by intervening.
If an animal is mortally wounded, or caught in a trap so that its capture is certain, the hunter acquires a right to possession and title which may not be defeated by another’s intervention.
Title acquired by possession can be lost if the wild animal escapes and returns to its natural habitat.
No one owns wild animals in their natural habitats. Under the common law capture rule, property rights in such animals are acquired only through physical possession.
Relativity of title – hierarchy of possession
PIERSON v. POST (defining capture):
While Post (p) was pursuing a fox, pierson, (d), killed the fox and took possession of it. Actual bodily seizure is not in all cases required – the mortal wounding of such beasts by one not abandoning his pursuit, may be deemed possession since the pursuer manifest an unequivocal intention of appropriating the animal to his individual use, and has deprived him of his natural liberty and brought him within his certain control. First in time/capture rule – he who first deprives a wild animal of its natural liberty first owns it.
A hunter must either trap or mortally wound a wild animal in order to acquire title to it
The mere pursuit of a wild animal is insufficient to vest title in the hunter
Fera
ry man should be able to enjoy the use of his land as he sees fit so long as the use is lawful
The capture of wildfowl in pursuit of trade is profitable; it creates wealth for the tradesmen, employees, and nation at large
D could have lured away by setting up another decoy, but the maliciousness of his acts makes him liable
Competition is acceptable, promotes capture of more wild animals
Policy – we want these waterfowl to be supplied to the market – ultimate policy argument. Plaintiff is doing something we like and want to supply game to the market. Other guy is shooting off guns on his property legal behavior. So which one do we want to encourage. You have to argue that one activity is better and more socially productive and that the other is not. Look to which situation is better for the economy.
First in time, first in right – even among thieves.
Domete natura – naturally tame, animals that do not resist capture
Animus revertendi – animal that has a habit of returning, must be returning not for food, but instead for some other reason as a peculiar function of the being, we are all creatures of habit. Returning to the familiar. Person to whom it returns bears responsibility, degree of ownership over that animal.
Res nullis – thing that is unowned/without ownership and thus subject to the rule of possession.
