Property Outline
Professor Goodman, Spring 2006
First Possession: Acquisition of Property by Discover, Capture, and Creation
Acquisition by Discovery
Johnson v. M’Intosh page 3
Indians sold the land to Johnson, and the United States later sold the land to M’Intosh.
Whose title prevails? Whose title will the Court recognize.
THREE PRINCIPLES
FIRST IN TIME—Johnson was the first one to get title to the land (other than the Indians)
RELATIVITY OF TITLE—basically, the first discoverer of the land gets an option on the land. But then the discoverer still has to purchase or conquer the land to get full title.
BUNDLE OF STICKS—the indians did not lose all property rights to the land. They were still supposedly allowed to occupy the land. However, this was not always the case. Many of them were just pushed off the land through different measures. The idea that native americans still retained some property rights, but had no power to keep other people off the land
Discovery v. Conquest
Discovery—sighting or finding of hitherto unknown or uncharted territory
Conquest—taking possession of enemy territory through force
FIRST IN TIME
PRO: easy to apply. Encourages exploration/discovery. Minimal state intervention. Argument that it is fair.
CON: not necessarily efficient or fair, encourages too much acquisition/exploration.
LABOR THEORY and JOHN LOCKE
Whenever you add your own labor to something it becomes yours.
PRO: encourages labor; reap what you sow
CON: encourages labor/exploitation, devalues “non-productive” property use, may not be clear.
EXAMPLE: manure pile. Court held for p after he raked it into pile and d stole it.
Law of ACCESSION: when one person adds to the property of another, by labor alone. E.g. A chopping B’s trees to make flower boxes from them. C using her oils and D’s canvas to produce a valuable oil painting.
BUNDLE OF STICKS
What do you get with property (based on RELATIONSHIPS)
Right to exclude
Right to alienate
Right to exploit
Acquisition by Capture
Pierson v. Post page 19 (FOX case)
Post was in pursuit of a fox on unpossessed (common law would give wild animals on owned land to owner, ratione soli of ferae naturae) land and at the last minute Pierson jumped in (knowing that Post was in pursuit), killed the fox, and took it away. Who gets the fox?
Court decides that since Post never actually had possession of the fox, it must go to Pierson. Hot pursuit was not enough.
PUBLIC POLICY
Court is trying to promote efficiency. Actual possession is easy to prove, pursuit is not.
Dissent is concerned that this will dissuade hunters when a saucy intruder might snatch it away from them. His PP is getting rid of foxes. Dissent also points out mortal wounding. Finally, dissent said local custom would rule, in which case Post likely would have won since hot pursuit gave right.
Majority view will create more effective killing techniques and dissent would create more efficient pursuit.
Popov v. Hiyashi.Barry Bonds ho
ource of a product or service. Trademarks arise out of the use of the mark in commercial activity and are lost when they are abandoned (or when the mark becomes generic, like aspirin).
Some things can be copyrighted and patented, like computer software. It’s written down, but it is also an invention.
TRADE SECRET—kept secret by company, so does not overlap with anything above.
RIGHT OF PUBLICITY—no one can use star’s likeness without his permission to benefit from his personality or persona.
DOCTRINE OF MISAPPROPRIATION
See also NBA v. Motorola, 1997(disseminating “hot” scores to subscribers)
International News Service v. Associated Press page 60 (gathered news material)
INS is freeriding off AP’s news gathering efforts.
Big PUBLIC POLICY.
AP would argue labor since INS does nothing. Also, if INS allowed to continue, AP would reduce costs and not work as hard gathering the news. Quality of news would go down.
INS would argue news not copyrighted. INS gathered news lawfully.
Court holds for AP. Brandeis dissenting says that free-riding is fine since it lowers the cost to the end consumer.
Cheney Brothers v. Doris Silk Corp. page 64 (STOLEN SILK DESIGN)
D is copying P’s silk designs. Can D be enjoined? NO.
