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Property II
John Marshall Law School, Chicago
Kordesh, Maureen Straub

Acquisition
 
(How one acquires property rights)
Ø      Act of acquiring property. 
Ø      Must common method is by some form of voluntary transfer but is also acquired by non-voluntary transfer. 
Ø      Many cases ownership is acquired by acquiring possession
Ø      Possession and ownership are NOT the same thing (landlord/tenant property)
 
 
FIRST POSSESSION
 
A.     Discovery v. Conquest (First in Time)
a.       Discovery – sighting or finding; see land, mark as their own and then sell it to establish discovery (European)
                                                                           i.      May include an element of improvement
                                                                         ii.      Claim laid by a human who wants…
b.      Unowned Discover – a thing or territory belonging to no one else(First in time)
c.       Conquest – taking through force, followed by formal connection; government claimed title to the land but Indians claimed possession 1) Drove the Indians off the land and 2) then the European fought over the land
d.      Cases:
                                                                           i.      Johnson v. M’Intosh – Indians case (p. 3)
 
B.     Capture (First in Time)
a.       You must have actual possession, or else constructive possession by inflicting a mortal wound
                                                                           i.      pursuit does not vest title
1.      first possessor has better title
b.      Can never convey more then you own
c.       Policy – Sake of certainty and preserving peace and order; no person would engage in fruits of their labor if it could be appropriated by an chance finder
d.      Brightline test – first in time
e.       Must have making by capture that shows that someone has taken it under their control
f.        Usage in a particular business can define ownership of property: Three types of usage:
                                                                           i.      Claimant owned a whale, dead or alive, so long as the whale was fastened by line or otherwise to the claimant’s boat or ship
                                                                         ii.      Conferred an exclusive right to capture upon the whaler who had first affixed a harpoon or other whaling craft to the boy of the whale
                                                                        iii.      Value of the carcass to be split between the first harpooner and the ultimate seizer by way of a reasonable salvage award
g.       Custom recognized as basis for property right when:
                                                                           i.      its application is limited to those working in the industry
                                                                         ii.      custom is recognized by whole industry
                                                                        iii.      requires of the first taker the only possible act of appropriation
                          

              ii.      Subject to his control
 
D.     Water
a.       Reasonable use (actually harms neighbors, considered unreasonable)
b.      Surface water/ground water
                                                                           i.      In western states – prior appropriation rules
1.      Scarcity of water
                                                                         ii.      In eastern states
1.      Riparian rights
a.       Each owner along a water source has the right to use of the water
 
E.      Creation (First in time)
a.       The notion that the person who creates property also owns it is not always clear. Statutes can make clear who owns property (i.e., copyright, trademark and patent rights) 
b.      To encourage people to create; no property right in pattern (Court cannot create copyright)
c.       Labor – investment of labor
d.      Must be evidence that it was created by the person (authenticated – labor first in time)
e.       Patents –
                                                                           i.      Living organism but uniquely created; not naturally occurring because it is the product of inventor’s engineering
Patent must be unique and useful