Possession v. Occupation
Occupation: means physically being on or near the location but not controlling the rights.
Possession: intentionality and rights that are recognized by some authority to control rights; Unknowing or accidental control is not sufficient.
· Actual – being in physical control over something
· Constructive –not in physical possession, but still having possession
F
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.
CH. 1 – ACQUISTION BY DISCOVERY, CAPTURE, AND CREATION
1. Acquisition by Discovery
– In order to buy property, seller must own title of property for it to be enforceable. If purchaser buys property from someone other than rightful owner, and property turns out to be defective, purchaser has no action against seller due to lack of title.
Johnson v. M’Intosh
– Purchase v. Conquest
– Indians knew English would overtake land so they were in essence forced under duress to sell land.
-Suspect Agreement
-The power to grant title to property is supremely held by the U.S. Government
-Unity of Absolute Title – absolute title cannot exist at the same time between 2 different persons
– “Reasonable Man” theory is what would a White, Upper-Class, Christian, Hetero male consider reasonable? This is vastly different from what would a reasonable woman or reasonable minority man, etc. think.
– Marshall said Indians were impossible to integrate with, and they were fierce savages. The Europeans had in implicit necessity they had to either leave the country alone or take it over. We were doing them a favor by instilling knowledge and Christianity upon them in exchange for their land to settle on. European, white, males will decide who will be excluded…which is the quintessential
Waste
a. Affirmative – to deliberately hurt something
b. Negative – did nothing to it to harm it but didn’t do anything to protect it and allowed it to deteriorate
c. Ameliorative – a change that is so substantial, so different than what it used to be that it is regarded as the waste of the old thing
· You did something to the land (decreased value); contrast with “Negative” where you didn’t do anything.
2. Acquisition by Capture
*All humans are ferae naturae. No matter how subdued they seem, they are at the core savage beasts then can be triggered into action. The release of that’s what is within us can be sprung. The natural beast. Hobbes: in a state of nature every man is every other man’s potential murderer. It is society that takes us out from nature, and imposes civilization. We are all able capable of murder. The animal that escapes is subject to being captured by the first pursuer. We are ALWAYS ferae naturae….beasts yearning for our freedom.
If an animal comes onto your property and you want to capture it, you need to know (1) does it have marks of appropriation, (2) whether its escaping back to its natural habitat, (3) and if its not that means there was a prior appropriator. (This is based on relativity of title so if you capture a prior appropriated animal and sell it, whoever appropriated it can sue you)
· If it is in its natural habitat and there are no marks of appropriation then you can appropriate it.
1. No one owns animals in their natural habitats (ferae naturae).
2. Ferae Naturae– if it’s natural instinct is to be free, if it resists being captured or flees when approached
– Naturally wild v. Naturally Tame “domata naturae” (check Latin reference)
Pierson v. Post – fox hunting: Hunter, Post, and hiker, Pierson. Pierson establishes the CAPTURE of the animal is a superior title over the pursuit of it. Pursuit + Physical Manucaption (physical control) gives you title = therefore Pierson prevails. Animals ferae naturae that are being pursued on unpossessed land will not be under the possession of any person until he has “manifests an unequivocal intention he is intending to capture it, then deprived it of its natural liberty, and finally, bought it under his own control”. This is the easiest way to maintain the rightful owner, for if it were left up to the word of the litigant who claimed to have pursued it first this would lead to many frivolous lawsuits.
For ferae nature, ownership is determined with (1) hunter has manifested an intent to capture, (2) has deprived animal of its natural liberty , (3) and brought it under his control. Right of capture not based on mere pursuit. (this applies on unpossessed lands only?)
Dissent says: Mere pursuit gives you no title to the property UNLESS pursuer is on the VERGE of capture, and but for the other’s actions the pursuer WOULD HAVE captured it. The dissenting judge wanted to use the CUSTOM of huntsmen to elicit the rightful owner, and in this community it was to give the fox to the original pursuer. This is a policy goal because foxes were considered “wild and noxious beasts” and they were eating all the chickens from the farmers. The policy goal is to protect the farmers who are being harmed by the fox. Also the hunting community’s custom in this region said the first pursuer had title. Should you defer to custom??? Why or why not? Custom should be only be deferred to when it is reasonable. The thought processes of the hunters will be to come with more power (i.e. bigger guns, more men, etc.) to scare off the hikers and to capture more foxes WHICH WILL INVARIABLY lead to the extinction of the beast.
“Judicial Hunch” is often from the dissenter and usually is wrong but critique it. Their hunch was that the hunters would just give up if people could intervene with their pursuit. the hunters wouldn’t just give up if the men could come and take their fox, they would find better ways to capture the foxes. This invariable leads to the extinction of the animal though.
Relativity of Title – Pierson claims he has a better relativity of title because he was the first pursuer; but Post says he has better relativity of title because he had Physical Manucapture.
Look for public policy reasons to adopt a rule of law in controversies you study in Property and other courses.
Overall reasoning of First in Pursuit v. First in Capture = The policy of certainty. “Its better tha
e as well too. This is accepted by right of Ratione Soli.
-SO why can utility and airline companies overtake property? B/c you have NO property without the state backing you. So the state says we need the right to build pipes under your land and we need the right of commercial travel (both of these are beneficial for society.) so they can limit your property rights b/c they’re the one backing your rights in the first place. So without the state’s OK we would have no property rights.
Animus Revertendi- animal that has a habit of returning, must be returning not for food, but instead for some reason as a peculiar function of the being, we are all creatures of habit. Person to whom it returns bears
responsibility, degree of ownership over that animal. If you own the property then you would have a superior claim over anyone else who was pursuing it.
Harold Demsetz, Toward a Theory of Property Rights (1967)
A. Concept and Role of Property Rights
Property rights convey the right to benefit or harm oneself or others by the use of one’s land. There is a close relationship between property rights and externalities.
Externalities – occur when some person, X, makes a decision about how to use resources without taking full account of the effects of his decision. X ignores some of the effects – some of the costs/benefits that would result from an activity, for example – because they fall on others. They are “external” to X. Consequentially, resources tend to be misused or misallocated, therefore if used in another way they could be better off for all of society. (p. 42).
– If X’s use of land makes 100 neighbors worse off economically they have incentive for self-interest to offer X some payment. It would be in X’s self-interest to accept as well. This payment should not make X lose money, and should not be more $ than each neighbor already is losing. The cost of each neighbor X previously ignored was external, however once disclosed is no longer.
– The neighbors would benefit the most as a whole to arrange a group offer so the total amount owed could be the least X would accept. However there are transaction costs:
– Investigation into who is misusing the resources, or X’s identity
– Efforts to raise money
– Reaching an agreed payment amount by everyone
– Free Riders – certain people may barely be affected to they choose to donate little, if any.
– May be possible lawyer fees if one is needed.
