PROPERTY LAW
Professor Kovacs Spring 2014
Text Book: Dukeminier
PART I: Introduction to Fundamentals
Chapter 1: First Possession: Acquisition of Property by Discovery, Capture, and Creation
A. Acquisition by Discovery
1) Johnson v. M’Intosh (SCOTUS, 1823) p.3
a) Procedural Hx: Action for ejectment for lands in District Crt. Of Illinois -> Found for D
b) Facts: Two non-Native American groups claimed title to land in Illinois (Illinois & Piankeshaw nations). Johnson inherited a tract of land from his father, who bought the land from the Piankeshaw Indians. M’Intosh was later granted title (given a patent) from the United States government. Johnson and M’Intosh filed an action for ejectment. Question is who owns the land?
c) Issues: Do Native Americans possess title to their land (i.e. the ability to transfer title)?
d) Holding: No. Native Americans have the right of possession of the land on which they live but they don’t have title to the land because they do not have a concept of individual property rights. Since they do not possess title, they cannot convey title to others. The U.S. has exclusive title to land because of the discovery and conquest of America by Europeans. Therefore, when title originally comes from the United States, that patent has priority over any conveyance of land by an Indian tribe. For all parcels of land in America, the chain of title begins with the United States government.
e) Rule of Law: Native Americans do not have title to land on which they live; they only have legal possession. Because they do not have title, they cannot convey/transfer title to others.
f) Policy: First in time principle – looks to discovery; who ever was first gets the land.
g) Class notes
i) Indian is a legal term of art not a derogatory term.
ii) “However this restriction may be opposed to natural right, and to the usages of…” looked to what the US government has adopted and not natural law.
iii) Mostly still good law but may violate international law
iv) Part of Johnson no longer good law – To take title from Indian land requires compensation now
v) Abstract justice = natural law (natural law view feels that government exists to enforce natural law)
(1) Declaration of independence key example – unalienable rights
vi) 3 key points
vii) Property is what government says it is (only if law recognizes it – legal positivism)
viii) First in time principle (nation that first discovered it
ix) Indians title – had right to use the land but does not have the right to sell or transfer it (an example of a restraint on alienation)
x) Alienation – ability to transfer something
xi) Restraint on alienation – a restriction on transferring
2) Notes & Questions p. 10
a) Real Property = land
i) Landownership commonly determines the ownership & control of natural resources (wild animals, water & minerals, peace & quiet, clean air, open space, etc.)
b) Personal Property = Property other than land
c) Discovery or Conquest? (terms of art in international law)
i) Acquisition by discovery – the sighting or finding of unknown or uncharted territory, frequently accompanied by a landing and a symbolic taking of possession. Title must subsequently be perfected, w/in reasonable time, by settling in and making an effective occupation
ii) Acquisition by Conquest – taking possession of enemy territory by force, followed by formal annexation of the defeated territory by the conqueror.
(1) In early European International law savage populations, or even non European populations were not considered populations and therefore the land was considered unknown or uncharted
d) Occupancy theory & the principle of first time in
i) The notion of being the first somehow justifies ownership – dates back to Roman law
i) Issue is that it is potentially inequitable and it has no moral grounds; it is just convenient and a nice clean rule.
b) Labor theory and John Locke
i) By using labor to some how enhance or add value to land, this mixing of land and labor gives a person rights to the property
(1) ex. A rakes manure left in the street and intends to pick it up the next day. B comes along and collects it for himself. The court finds that the regional animal owner has the rights but if abandoned, then A has the rights because they were the first to use their labor to enhance the value of the property.
B. Acquisition by Capture
1) Pierson v. Post (SC NY, 1805) p.18 – Rule of capture
a) Parties: P: Post pursued the fox; D: Pierson saw the pursuit and killed it anyway
b) Procedural Hx: Action of trespass (suing for damages) brought in a justice’s crt -> found for P (Post)-> D (Pierson) sued for certiorari (“CERT”) claiming the facts were not sufficient in law to maintain an action -> NY Sup. Crt found that the lower crt erred and judgment should be reversed.
c) Facts: Post w/ his dogs and hounds hunted, chased and pursued a fox along a beach. Pierson saw the chase, but then killed the fox and carried it off anyway. Post claimed a legal right to possession of the animal, and the lower court agreed with him
d) Issues: Does a person obtain possession of a wild animal by pursuing it? (when does one obtain occupancy in regards to possessing a wild animal)
e) Holding: No. Judgment reversed. Merely finding and chasing a wild animal does not give a person possession. Even merely wounding the animal will not give right to possession. Mortal wounding w/ continued pursuit is enough to establish a claim.
f) Dissent: Livingston J. wants the decision to serve more of a policy goal; we want to encourage killing these “sly and ruthless” foxes. When a person spends his day hunting a wild animal and comes close to reasonably capturing him, another person should not be allowed to claim possession of that animal. Should have submitted case to the arbitration of sportsmen; their opinion is opposite of the majority (which should prevail the ruling or custom?).
i) More instrumental v. majority is more fundamental
ii) functional/practical v. immutable law; although the majority is somewhat fundamental in regards to trying to keep these case out of court i.e. legal certainty
g) Rule of Law: Pursuit alone is not enough to establish a property interest. To establish ownership we need mortal wounding with continued pursuit. (1) intention of appropriating the animal to his use, (2) deprived of natural liberty and (3) brought it under his certain control.
h) Policy: Majority wanted to promote legal certainty. If pursuit alone was sufficient to for a property right it would lead to a lot of quarrels.
i) Many Authorities hold that actual possession and control of a wild animal is necessary for ownership. Exceptions include mortally wounding an animal or catching them in a trap b/c it asserts some control and deprives the animal of natural liberty.
ii) Still looks to First in time doctrine but the debate is over when do you consider it to be occupancy of the animal.
iii) “Certainty is good b/c it promotes investment of time and resources, however inflexible laws could be constricting as well.”
2) Ghen v. Rich (US Dist. Crt. MA 1881) p.26
a) Parties: D: Rich purchased whale at auction; P: Glen whaler who shot the wale and killed it
b) Procedural Hx: Libel to recover the value of a fin-back whale -> judge found in favor of Glen (who ever kills it owns it)
c) Facts: A whale washed up on a beach. Rich (D) purchased the whale at an auction. The crew of Ghen’s (P) whaling ship shot the whale w/ a bomb lance marking the whale as his own. The whale sank but washed ashore 3 days later, 17 miles from where it was killed. Community policies are that a finder of the whale notifies the owner and they come and remove the whale. The owner pays the finder a fee (b/c a whale swims fast and can’t be taken by harpoon & line). The Finder, instead of following custom, advertised and sold the whale to the D. Neither the D nor the Finder knew P had shot the whale, but they should of known because the whale had been killed with a marketed bomb-lance.
d) Issues: Whether title to a whale is acquired under reasonable local usage when only an unequivocal mark of appropriation is possible?
e) Holding: Yes. The Plaintiff, by using an identifying bomb-lance, did everything practicable in order to secure the whale. Although local usage should not trump maritime law, a custom, if embraced by the entire industry for an extended period of time, can be enforced. Since this local custom allows the whaling business to remain viable it should be enforced.
f) Rule of Law: Reasonable local usage gives title to the first taker of a whale by acts of appropriation.
g) Ideas: The common law mandates that control is a necessary prerequisite to someone being able to possess a wild animal. However, the instant case is unique. First, the Plaintiff did everything in his power to possess the animal. Second, the widespread custom in the industry recognized this as the only realistic form of possession.
h) Policy: Custom controls in this case like in Swift b/c its rational to promote whale hunting, the industry has flourished under this custom, there is no conflict w/ common law (pretty much in line w/ Pierson v. Post – mortally wounded the animal but no real way to keep pursuit – Ghen did everything possible) and this custom only affects a few people and its been long standing. It is the only thing that makes sense, and works so well.
i) Remedy: the market value of the oil less the cost of processing it, plus interest
j) Libel: admiralty law equivalent of a lawsuit; libellant = plaintiff
k) Notes: here the custom and usage of whalers decided the rule, in Pierson v. Post the judges made the rule and not the arbitration of sportsman.
The conservation group Greenpeace tries to frustrate the capture of whales by putting their boats b/w the whalers and the whales. Suppose that the conservationists as
quasi property interest in the news it collected and misrepresenting it as their own.
e) Rule of Law: There is a quasi property interest in news collected by an agency against other news collection agencies. It is unfair business competition for a news collection agency to distribute the news collected by another news collection agency.
f) Policy: By not prohibiting this behavior there would be little incentive for a company to collect the news. One company would bare the burden of doing the hard work and others would just copy; ultimately they could reproduce it for a lower price b/c they don’t have the cost burden of collection. (similar ideas in Ghen, and Livingston’s dissent in Post)
g) Ideas: In determining whether a news collecting agency has property rights in the news the consideration needs to be whether an agency has a property right in news it collected versus other collecting agencies, rather than against the public. The business of making this news known to world, when the parties to the case are competitors in the field creates a quasi property interest in the news between them. It is unfair competition when one party interferes with the normal operation of another’s legitimate business precisely at the point where profit is to be reaped, in order to divert a material portion of the profit from those who have earned to those who have not.
h) Notes: Once the news is known there is no property interest against the public, but against each other, AP has a quasi property interest b/c gathering the news takes money, organization, and skilled labor. So when INS appropriates the AP bulletin and distributes them as their own it’s unfair competition.
i) Key points: (1) Law favors competition but not when it’s unfair. (2) The common law rule is different – After voluntary communications, knowledge, truths, and ideas become free as the air to common use; i.e. once it is out it is not property any more.
2) Cheney Brothers v. Doris Silk Corp. (US Crt of Appeals 2nd Circuit 1929) p. 61
a) Procedural Hx: P sued for damages when D stole a pattern – > trial crt found for D- > P appealed and the Crt of appeals affirmed that the bill cannot succeed and the case should be dismissed
b) Facts: The Cheney Brothers (P), sought to enjoin Doris Silk Corporation (D) (both silk manufacturers) from copying its designs during the season. P puts out many new patterns each year, most of which have a life of only a season. Copyright Act and Copyright Office holds that the designs are not original in enough sense to allow them to obtain a copyright or secure design patents. The D copied one of P’s most popular designs and undercut the price. P sued D for damages and equitable relief under property law. The trial court dismissed Ps action & P appealed.
c) Issues: Does P, absent a common law right or statute, have a property right sufficient to prevent another from copying its chattel?
d) Holding: No. Because the P could not secure a copyright or a patent on its patterns, the P could not recover as a result of the D’s copying. Since no statutory authority promulgated pursuant to the patent or copyright law existed to protect the P’s pattern, the P’s property is limited to the tangible objects embodying his invention. Thus, although the D copied the P’s patterns the imitation is not actionable.
e) Rule of Law: “In the absence of some recognized right at common law, or under a statute… a man’s property right is limited to the chattels which embody his invention. Others may imitate these at their pleasure.”
f) Policy/Ideas: Since there is no common law copyright law, the P’s property right is limited to chattels that embody the invention, not the design pattern that has a short life. The P has no property right to prevent any imitation of it. The US Constitution confers only Congress the power to create this right, not the court.
i) Hand J. did not apply INS v. AP b/c he didn’t believe it looked to create a common law copyright b/c it goes against congressional power (limited only to the specific facts in INS v. AP).
