Property Outline
I. ACQUISITION OF PROPERTY INTERESTS
(OTHER THAN THROUGH PURCHASE)
A. Acquisition by Discovery
Johnson (Successor to Indian Title) v. M’Intosh (Successor to United States Title) (1823)
RULE OF LAW: Discovery of land in America by a European power gives absolute title subject only to the Indian right of occupancy.
Issue: Is title by grant from a discovering nation superior to title obtained by purchase from those that the nation conquered? Yes.
Court declares that conquest has vested title in the United States that is superior to the title of the Indians.
Original fundamental principle: discovery gave exclusive title to those who made it.
While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.
All the nations of Europe who have acquired property on this continent have asserted in themselves, and have recognized in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians.
The United States have unequivocally acceded to that great and broad rule by which civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.
An absolute title to lands cannot exist at the same time in different persons or in different governments. An absolute must be an exclusive title, or at least a title which excludes all others not compatible with it.
All our institutions recognize the absolute right of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.
The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest.
Discovery of land gives an exclusive right to extinguish an Indian right of occupancy and this can be done by purchase or conquest. Conquest gives title superior to all others. The Indians were ‘fierce savages’ that could not be assimilated, but those that were peaceful retained the right of occupancy. However, that does not mean they acquired the ability to grant land.
The property owner’s chain of title reaches back to a sovereign. When a sovereign is involved, conquest of the land is the best explanation for the creation of a property right. The Indians lost a protracted war and therefore cannot pass title to the land in question. This is merely victor’s justice.
As Johnson v. M’Intosh suggests, most land owners in the United States trace their ownership – their title – back to grants (or patents as they are called in the case of conveyances of public land out of the government) from the United States.
The United States traces its title, by grant or otherwise, all the way back to the discovery of America by the white man.
Chain of title: the links in the chain are the transactions (conveyances) by which a parcel of land moves from owner to owner over time.
Acquisition by discovery: the sighting or ‘finding’ of hitherto unknown or uncharted territory; it is frequently accompanied by a landing and the symbolic taking of possession, acts that give rise to an inchoate title that mu
ves it a reasonable time to procure the means to take it away, when such means are necessary for its removal? No.
John Locke and Johnson v. M’Intosh.
Locke appears to have shared the common European view that the Native Americans had no substantial claim to the New World they had so long occupied. He reasoned that the Indians’ occupancy of their aboriginal lands did not involve an adequate amount of labor to perfect a property interest in the soil.
Property and Power.
Property confers and rests upon power.
Property means that the sovereign state stands behind the owners’ assertion of right.
Individual property rights depend on state power.
The owner’s security as to particular assets comes at the expense of others being vulnerable to the owner’s control over those assets.
Ownership is power over people, not merely things.
Absolute title: perfect title, unencumbered title
Convey: To transfer realty to another person.
Conveyance: The transfer of land from one person to another.
Ejectment: An action to recover the possession of land.
Occupance: Same as possession.
Vest: To give a right to.
B. Acquisition by Capture
Pierson (Killer of Fox) v. Post (Pursuer of Fox)
RULE OF LAW: A hunter must either trap or mortally would a wild animal in order to acquire title to it.
Issue: Does mere pursuit of a wild animal vest title in the pursuer? No.
Since a fox is a wild animal, a property right can be acquired in it only if the hunter “occupies” it.
Some authorities feel that a hunter can occupy a wild animal only if he traps it.
