Property Outline
Parties to property that are necessary:
Thing
Person
Other person who is opposed to the thing or person
The state which gives us the law by which we define what things are capable of being property and owning property.
Chapter 1: First Possession – acquisition of property by Discovery, Capture and Creation:
Acquisition by Discovery
a. Entails sighting or finding unknown or unchartered territory and is frequently accompanied by a landing and the symbolic taking of possession acts that give rise to a title and must be perfected within a reasonable time by settling in and making an effective occupation
b. Johnson v. M’Intosh – D acquired title to land under grant from the US, P acquired title to the same land by purchase from the Painkeshaw Indians. Should the Indian’s title be recognized?
i. Rule: NO – Discovery gives an exclusive rt to extinguish the Indians’ right of occupancy either by purchase or by conquest. Rationale: 1) Since Indians were warlike & moved from place to place, they did not have rightful possession of the land (they weren’t improving the land). They could use land but not pass title to someone else 2) Judge Marshall held that Europeans & subsequently the US acquired title by conquest (“This is the way it was done before, we must uphold, regardless of fairness”) Too much of society depends upon titles based upon conquest – it is the law!)
Acquisition by Capture (19,
a. Wild animals
ii. Belong to the captor; capture is required and not just chasing the animal
1. Pierson v. Post- Post chasing animal, but Pierson killed the fox and carried it away. Belongs to Pierson.
2. mortal wounding plus pursuit to capture the animal is enough to make it your property.
iii. A property interest in Ferae naturae is acquired by occupancy alone, and not just pursuit.
1. Reason is that we need to have legal certainty, otherwise we would have social conflicts
iv. Landowners are regarded as the prior possessors of any animals ferae naturae on their land, until the animals take off.
v. 3 ways to turn a wild animal into property
1.
he animals caught.
1. Society benefits if another person engages in competition so that things keep becoming further improved. (ie- setting up a better school, making a better decoy pond) however this was not competition here.
iii. An owner of land has possession that is of wild animals on the owner’s land. Landowners are regarded as the prior possessors of any animals on their land until the animals take off.
d. Demsetz – toward a theory of property rights:
i. People act rationally in a way to further their self interest
1. People are generally indifferent to the interest of others.
ii. private capture = private ownership (once you capture a resource it is yours and no one else’s)
ex – a duck is a common resource people capture that expends the resource by using the resource itself.
